Bank of the United States v. Carneal

ERROR to the circuit court of Ohio.

This suit was originally brought against William Steele, William Lytle, and Thomas D. Carneal. The plaintiffs counted in assumpsit for money lent and advanced, under a provision of the statute of the state of Ohio, authorising a joint suit against all the parties to a promissory note.

The original process was served upon William Steele and William Lytle. As to Thomas D. Carneal, the marshal of the district of Ohio returned 'not found;' and this return being suggested of record, the plaintiffs, at the September term of the circuit court for the year 1823, proceeded to judgment against Steele and Lytle.

In May 1824, the plaintiffs, in pursuance of another statute of the state of Ohio, sued out of the clerk's office of the circuit court a writ of scire facias against Thomas D. Carneal, (as to whom the marshal of the district had previously returned 'not found,') the object of which writ was to call upon him to show cause why he should not be made a party to the judgment against Steele and Lytle, and why execution should not issue against him agreeably to the provisions of the statute.

This writ having been served upon the defendant, a rule was taken against him for a plea. At the September rules 1824, the defendant's default was entered, and judgment 'nisi.' At the January term 1825, this default was set aside, and the defendant filed the plea of non assumpsit; upon which issue was joined.

The cause was regularly continued upon the docket until the July term 1827; at which term the defendant's attorney filed a further plea.

'And the said Thomas D. Carneal, by the leave of the court, first had and obtained for further plea in this behalf, defends the wrong and injury, when, & c., and says, That the said promise in the said declaration, in the original cause supposed, was made by the said Carneal as co-indorser with William Lytle, upon a promissory note, made and executed by the said William Steele, the said Carneal and Lytle being indorsers, as securities for the said William Steele; and, after the making of the said promise, and after the commencement of this suit, to wit, on the 17th day of December 1824; in consideration that the said Lytle had transferred to the plaintiffs a large amount of real estate, in payment and satisfaction of the debts of the said William Lytle to the said plaintiffs, including the debt due the plaintiffs upon the indorsement aforesaid, and had given his notes for the payment of a large sum of money, to wit, the sum of forty thousand dollars, upon account of and in satisfaction of his said liabilities to the plaintiffs, including the indorsement aforesaid: the said plaintiffs agreed with the said William Lytle that they would accept and receive the real estate so conveyed, and the notes so made and delivered, in satisfaction of the said debt due from the said William Steele, upon which the said Carneal, with the said William Lytle, were indorsers and securities as aforesaid; and did then and there accept and receive the same in satisfaction of said debt; and this the said Carneal is ready to verify: wherefore he prays judgment, if the said plaintiffs their action ought further to have or maintain against him.'

At the December term 1827, the plaintiffs filed their replication to the above plea, in the following words: 'And the said plaintiffs, by Daniel J. Caswell, their attorney, as to the plea of the defendant, by him last pleaded, to the further maintenance of the said action, say, that for any thing in the said plea set forth, they ought not to be barred from further having and maintaining their said action, because, protesting that the said William Lytle did not transfer to the said plaintiffs the real estate in the said plea set forth, nor give his notes for the sum of money in the said plea set forth; for replication to the said plea, they say that the said plaintiffs did not accept the same in satisfaction of the sum of money due the said plaintiffs, as set forth in their said declaration; and this they pray may be inquired of by the country, and the defendant doth the like, &c.

The cause was tried at the July term 1828, and a verdict and judgment rendered for the defendant.

The counsel for the plaintiffs tendered their bill of exceptions, and prosecuted this writ of error.

The bill of exceptions sent up with the record, contains the whole of the testimony given on the trial. The facts of the case, as they were understood and considered by the Court, are stated in the opinion of the Court delivered by Mr Justice Story.