Vol. III.] LOCKE v. McVEAN. [No. 9. what is claimed is identically comprehended by the written description of the undertaking, there would seem to be no room for debate. The transaction here must be viewed as it would be if the contract between the plaintiff and David McVean had been copied into the preamble of the condition of the bond; and proceeding to read the bond in that way, and comparing the notes in question with the defendant's undertaking in the obligation, I discover no ambiguity and find nothing uncertain. The parties contemplated two forms of indebtedness, one by notes given for machines, and the other for needles, thread, and findings, for which notes were not expected to be given, and in the commencement of the agreement it was provided that David should pay such indebtedness when due. The notes there referred to were left to be described in a later provision, and in the seventh article we find them described. For every machine, David was to give at the time of purchase his note on four months' time without interest, and in case he desired, was to have an extension for sixty days, but for the time of the extension there was to be interest at the rate of eight per cent. Of course under the arrangement, Locke would be entitled to the specified note on parting with the machine. No other or different notes were provided to be given by David to the plaintiff, and under the contract the plaintiff could not require any other. They would be a specific form of indebtedness, and very distinguishable from one resting upon verbal proof. As notes they could be negotiated and used in business, and transferred so as to exclude objection or defence by the maker. The guaranty amounted to an obligation that such notes should be paid when due; but it was not an agreement that any notes which David might give to run six months or six years should be paid when due. It was of special interest to the guarantors that the time of running of the notes they were to be liable for should be fixed. If not fixed, then the time in each case would depend on the notions of the immediate parties, who might make it very short or extend it to years, and the guarantors would be always uncertain as to the length of time to which their liability might be carried. Every one must see the difference between becoming bound for all notes one neighbor may give another on whatever time, and becoming bound for all notes so given having four months to run. It is common experience that men will often become sureties on three or four months' paper, when they will not if the paper was drawn at six months. There are some definite circumstances which mark the difference in the risk, and there is always room for contingencies to enhance the risk. But the main consideration is, the guarantors only undertook for paper of a specific description, only because bound to stand responsible for four months' notes, and the plaintiff and David had no power to extend the obligation to other securities. The plaintiff's counsel contend, however, that in view of the clause for an extension on each four months' note for sixty days, the notes in question, though given for six months, were substantially for four months extended as authorized. I do not think so. Each note was to run four months without interest, and in case of extension then to carry interest at eight per cent. per annum for the extended time. Vol. III.] SMITH V. THE EXCHANGE BANK OF Pittsburg. [No. 9. As previously stated, the second note in question was intended to draw interest from its date for four months at seven per cent., and thereafter at eight. Clearly this note was a great way from being the same as one drawn pursuant to the plan covered by the guaranty and then extended sixty days. A few figures will explain one marked difference in dollars and cents. But a short computation and comparison will prove that neither of these notes, in regard to length of time or amount of interest, is in substance the same as if drawn for four months without interest and extended sixty days with interest at eight per cent. during that period. In every case the time and amount are both greater. Other distinctions may be noticed. The legal right to compel reception of payment and the surrender of the paper is postponed an additional two months, and that excess of time is likewise afforded for transfer before maturity, and these are substantial differences. Indeed the variances are too marked to leave room for any serious question. Russell v. Perkins, 1 Mason, 368; Birckhead v. Brown, 5 Hill, 634; North Western R. R. Co. v. Whinray, 26 E. L. & Eq. 488; Walrath v. Thompson, 6 Hill, 540; S. C. 2 Cow. 185; Skinner v. Valentine, 59 N. Y. 473; Hall v. Rand, 8 Conn. 560; Eames v. Carlisle, 4 N. H. 201. The judgment should be affirmed with costs. NATIONAL BANK. SUPREME COURT OF OHIO. (To appear in 26 Ohio State.) POWERS OF, TO DISCOUNT PAPER, ETC. USURY. SMITH v. THE EXCHANGE BANK OF PITTSBURG. In the business of banking, the purchasing and discounting of paper is only a mode of loaning money; and a national bank is authorized thus to acquire notes and bills which are perfect and available in the hands of the borrower, as well as his own paper made directly to the bank. Where a note or bill is an existing security in the hands of the holder, the usury exacted by the bank in its acquisition is not available, by way of defence, to the antecedent parties. Their rights and liabilities are not affected by the usurious character of a transaction in which they did not participate. The party with whom the bank had the usurious transaction is the party to whom, under the national banking act, the forfeiture of interest is to be adjudged; and who, in case the interest has been paid, is authorized to recover back twice the amount. MOTION for leave to file a petition in error to reverse the judgment of the district court of Franklin County. On the 17th day of October, 1874, the defendant in error commenced an action, in the court of common pleas of Franklin County, against Benjamin E. Smith, William Dennison, James M. McKee, Francis Collins, Vol. III.] SMITH V. THE EXCHANGE BANK OF PITTSBURG. [No. 9. D. T. Thompson, A. J. Ware, and C. R. Griggs, upon a bill of exchange of which the following is a copy, with the indorsements thereon: "$6,000. Columbus, Ohio, March 5, 1874. Five months after date pay to the order of Harbaugh, Matthias & Owens six thousand dollars, at St. Nicholas National Bank, New York city, value received, and charge to account of B. E. Smith. To Thompson, Griggs & Co., Columbus, Ohio. Accepted: Thompson, Griggs & Co." Indorsed: "Pay order of Exchange National Bank of Pittsburg. Harbaugh, Matthias & Owens." The petition in the action alleges, among other facts, that the bill was accepted in writing by said Thompson, Griggs & Co., on the 4th day of April, 1874, and was on that day indorsed and delivered for value to the defendant in error; that said Smith is liable on the bill as drawer, and all the defendants are liable thereon as acceptors; that on the day the bill became due no part thereof was paid, although then presented to said Thompson, Griggs & Co., at St. Nicholas National Bank, in New York, for payment, and protested of all which said Smith had then due notice; that said St. Nicholas National Bank is situate in the State of New York, and the legal rate of interest therein is seven per centum per annum; that there is due from the defendants to the plaintiff the sum of $6,000, with interest thereon, at the rate of seven per centum, from August 8, 1874, and $2.49 costs of protest; and for all which the plaintiff prayed judgment. On the 18th of November, 1874, two of the defendants- namely, Smith and Dennison filed their answer. It sets up three grounds of de fence: - (1.) That the plaintiff is not entitled to recover interest upon the amount of said bill at the rate of seven per cent. per annum from August 8, 1874, on which day the bill became payable. (2.) That on the 4th of April, 1874, the plaintiff in the action purchased said bill of said Harbaugh, Matthias & Owens, the payees thereof; and that by the provisions of the act of Congress to provide a national currency, the plaintiff had no authority to purchase said bill, and therefore has no legal right to maintain the action. per (3.) That the plaintiff has its place of business in the city of Pittsburg, Pennsylvania; that by the law of that state the rate of interest is six cent. per annum, and by said act of Congress plaintiff is only entitled to charge interest at that rate upon its loans, discounts, &c.; but that in the purchase of said bill the plaintiff, as the defendants are informed and believe, and from such belief aver, charged and received interest at the rate of nine per cent. per annum, and that such act was illegal, usurious, and void, and the plaintiff has no legal right to maintain said action on said bill. On the 1st of December, 1874, the plaintiff filed a demurrer to each ground of defence. Afterward to wit, December 21, 1874 the plaintiff moved the court to hear the issues of law raised by said demurrers, out of the order in which the cause had been placed on the trial docket. Smith and Dennison resisted the motion, and filed a paper styled an answer to the motion, in which they claimed that their legal counsel had not " prepared properly for the hearing and argument of said issues of law" at the term of the court then being holden, and asserted that the court could not Vol. III.] SMITH V. THE EXCHANGE BANK OF PITTSBURG. [No. 9. legally order the cause to be heard on the demurrers until it was regularly reached on the docket. The motion was sustained, and the cause heard upon said demurrers, and taken under advisement by the court. At the January term, 1875, the demurrers were sustained. Thereupon, said Smith not asking leave to amend his answer to the petition, nor to plead further, the plaintiff submitted the cause to the court; whereupon the court found that said Smith, as drawer of said bill of exchange, owed to the plaintiff the sum of $6,221.82, as alleged by the plaintiff, and that the action was one in which a several judgment could properly be rendered against said Smith as drawer of said bill, leaving the action to proceed against the parties defendant charged in the petition as acceptors; and a judgment was accordingly rendered against said Smith for said sum, and an order entered that the action proceed against the defendants charged in said petition as acceptors of said bill. Smith afterward filed a petition in error in the district court to reverse said judgment. Before the cause came on to be heard, the plaintiff below, by leave of the court, remitted from said judgment the sum of thirty-two dollars, as of the date of rendition thereof, being the amount of interest included therein over and above the rate of six per cent. per annum, computed on the amount of said bill of exchange after its maturity, and leaving due on said judgment, at the rendition thereof, the sum of $6,189.82. And thereupon the cause was heard, and the court adjudged that said judgment, deducting said sum of thirty-two dollars remitted as aforesaid, be affirmed, but at the costs of the defendant in error. The entry of the remittitur of all interest over and above six per centum per annum, from the maturity of the bill to the rendition of the judgment, put an end to the question made by the demurrer to the first defence. Leave is now asked to file a petition in error in this court, to reverse the judgment of affirmance of the district court, and also the judgment of the court of common pleas. L. English & J. W. Baldwin, for the motion. I. The court erred in hearing the demurrer out of the order in which it stood on the trial docket. When a case is placed upon the trial docket of the term, it becomes subject to all of the regulations prescribed by the Code as to time of trial, under article 8, of title 9, sections 306 and 307. Each trial docket for each term is intended for the disposition of the causes pending for adjudication in the court at that particular time; belongs to it; must be made solely in reference to it; and cannot be arranged, assigned, or disposed of in any other mode than prescribed by the law. The court has no authority to prescribe how it shall be made or the actions thereon set for trial. That is the clerk's duty under the law, and not under any rule of court, for the latter has no authority to make any rule except in accordance with the law. When the court convenes, it takes the docket as made up, and the causes thereon assigned or set for particular days, in the order in which the issues were made up. The issues of fact cannot be tried, except in that all must be tried in their order. As to all other cases, however, a discretion is given as to the time of their hearing. Vol. III.] SMITH V. THE EXCHANGE BANK OF PITTSBURrg. [No. 9. The discretion given to the court by section 307 is nothing other or more than to direct, if it deems expedient for the disposal of business, that all such cases may be taken out of the several places they occupy on the docket as to issues of fact, and be tried, or set for trial, at any particular time, in the order or priority in which they all have been placed upon the docket as to themselves "inter sese." They may be heard out of the order in which they stand upon the docket as to issues of fact, but must be heard in the order in which they stand upon the docket as to issues like themselves. II. The question arising under the fourth error assigned is: Does the act of Congress, under which it exists, authorize or permit a national bank to purchase a promissory note, bill of exchange, or other evidence of debt? The banking powers of these associations are to be found in section 8 of the act referred to. This is the law of the bank's capacity, its life, powers, and existence. It accords with the nature of banking-"discounting and negotiating bills and notes; buying and selling exchange, coin, and bullion; loaning money on personal security." The reasons are manifest. Congress did not intend, and did not create, a horde of brokers' institutions, but what were expected to be associations in which capital could be placed and used with advantage to itself, and for the promotion of the business interests of the various communities in which they should be located. These banks have no power except those conferred upon them by the act referred to. Bank of U. S. v. Dandridge, 12 Wheaton, 64; Head v. Ins. Co. 4 Cranch, 127; Dartmouth College v. Woodward, 4 Wheat. 436; Bank of Augusta v. Earle, 19 Peters, 587; Penrose v. C. & D. Canal Co. 9 Howard, 184; Venango National Bank v. Taylor, 6 P. F. Smith, 14; Bank of Chillicothe v. Swayne, 8 Ohio (pt. 2), 257. By said act (and we only refer to section 8, because we conceive all its powers of banking are therein alone conferred) such bank has power to discount and negotiate promissory notes and bills of exchange. Do these terms include the power to purchase buy such notes and bills? "Negotiate," cannot by any possibility be tortured into any such meaning as "purchase." But can the word "discount" cover any such meaning? The language of the act was probably copied from the New York Free Banking Act of 1838, of which it is almost a literal transcript. The meaning of the New York act has been judicially determined. Talmadge v. Pell, 3 Selden, 328; Niagara County Bank v. Baker, 15 Ohio St. 68; Flecher v. U. S. Bank, 8 Wheaton, 338; Morse on Banking, 20. It is claimed that section 30 is a recognition of the power to purchase: but it is only of "bona fide bills of exchange," not a mere evidence of debt; not paper made in that form to sell and raise money upon; not accommodation paper, nor even business paper made in that form, so as to insure its purchase at a greater rate of interest than the bank is allowed to receive as discount, but a bona fide bill of exchange - exchange as it is expressed in section 8, and not intended in any way as a shift for a loan of money, or a discount at illegal interest. The bill of exchange is not to be determined alone by its form, but by the real character of the transaction. Corcoran & Riggs v. Powers, 6 Ohio St. 19. In the case at bar, according to the petition, all the defendants are |