M'Niel v. Holbrook

ERROR to the circuit court of the United States, for the district of Georgia.

In the circuit court of the United States, for the district of Georgia, Lowell Holbrook instituted an action on four promissory notes; one of which was drawn by the plaintiff in error, in favour of Lowell Holbrook, and the three other notes were drawn in favour of other persons, who had endorsed the same over to Mr. Holbrook. An affidavit of the agent of the plaintiff, stating that the defendant, John M'Niel, was indebted to Lowell Holbrook in the amount of the said notes, was filed with the declaration. Issue being joined in the suit, the plaintiff to support the action, without having proved the handwriting of the drawer of the notes, or of those who had endorsed three of the notes to him, offered the testimony of W. W. Gordon, Esq. the counsel of the plaintiff, to prove 'that John M'Niel had repeatedly, and as late as November 1st, 1835, admitted his indebtedness upon those promissory notes; and, at the same time, offered to confess a judgment for the amount of principal and interest, upon certain terms, by which he was to be allowed time for the payment of part. The negotiation continued until November 3d, 1836; and then was only not completed, from the inability of John M'Niel to pay the cash, which he had in the first instance offered.' The defendant objected to the admission of this evidence, and insisted that the acknowledgment was only an offer by the defendant to buy his peace, by a compromise made in the course of a negotiation, for the settlement of the claim of Mr. Lowell Holbrook; which said compromise and negotiation having failed, the acknowledgment could not be given in evidence, to sustain the claim of the plaintiff. The defendant also objected to the evidence; as the plaintiff had declared against the defendant as endorser of promissory notes alleged to have been made by certain persons to him, he was bound to prove the endorsement of the notes by the said persons; and the court could not dispense with the proof of the endorsements. The court refused to give the instructions, as asked by the defendant; and instructed the jury, that the evidence offered and admitted was sufficient to entitle the plaintiff to recover against the defendant.

The jury having found a verdict for the plaintiff, according to the instructions of the court, and judgment having been entered thereon; the defendant prosecuted this writ of error.

The case was submitted to the Court by Mr. King: who also moved the Court to allow damages to the defendant in error, at the rate of ten per centum per annum, according to the 17th rule of the Court; which allows such damages, when a writ of error is sued out for delay.

Mr. Chief Justice TANEY delivered the opinion of the Court.