Waddle v. The President Directors and Company of the Bank of the United States

THIS was a writ of error brought to reverse a judgment rendered in the Circuit Court of the United States, for the District of Ohio, in favor of the Bank of the United States, the present defendants in error. The declaration contains a common court for money lent and advanced. The plea is non assumpserunt. There is another plea of non assumpsit, filed by H. Fullerton alone, and under it, a notice, that he will off-set a large sum of money, $3957 33 1/3, due by the bank to the said Fullerton, being the avails of a certain note (the note on which the action was brought) which was discounted by the said Fullerton at the office of discount and deposit in Cincinnati, and the proceeds of which he had never checked out. There is another notice of off-set by all the defendants-that the plaintiffs are indebted to the defendant Fullerton, in a large sum of money, $5000-being the avails of a certain promissory note (the note on which plaintiff's action is founded) which has never been paid by the bank to Fullerton, or received by him, but retained by the plaintiffs; and Fullerton applies the same, by way of discharge and set-off to the said note made to plaintiffs. The cause was tried by a jury; and, on the trial, the plaintiff exhibited in evidence, a certain note, a copy of which follows:

$4000.

Cincinnati, February 1, 1820.

Sixty days after date, I promise to pay John Carlisle, or order, at the office of discount and deposit of the Bank of the United States at Cincinnati, four thousand dollars, for value received.

(Signed ISAAC COOK.

Endorsed-John Carlisle, John Waddle, Humphrey Fullerton.

Isaac Cook, the drawer of the note, died pending the suit, and before the trial. To the introduction of this note in evidence the defendants objected, as evidence of a several contract of the drawers and each one of the endorsers, and not of any joint undertaking or liability of the defendants. This objection was overruled by the Court, and the note permitted to be read in evidence, under the eighth section of the Act of the General Assembly of Ohio, entitled, 'An Act to regulate judicial proceedings, where banks and bankers are parties, and prohibit the issuing bank bills of a certain description, passed 18th February, 1820; to which decision of the Court the defendants excepted.

The eighth section of the Act provides, 'That when any sum of money due and owing to any bank or banker shall be secured by endorsements on the bill, note, or obligation for the same, it shall be lawful for such bank or banker to bring a joint action against all the drawers or endorsers, in which action the plaintiff or plaintiffs may declare against the defendants jointly for money lent and advanced, and may obtain a joint judgment and execution for the amount found to be due; and each defendant may make the same separate defence against such action, either by plea or upon trial, that he could have made against a separate action; and if in the case herein provided for, the bank or banker shall institute separate action against drawers and endorsers, such bank or bankers shall recover no costs. Provided always, that in all suits or actions prosecuted by a bank or banker, or persons claiming as their assignees or under them in any way for their use or benefit, the sheriff upon any execution in his hands in favor of such bank or banker, their or his assignee as aforesaid, shall receive the note or notes of such bank or banker, from the defendant in discharge of the judgment, and if such bank or banker, their or his assignee or other person suing in trust for the use of such bank or banker, shall refuse to receive such note from the sheriff, the sheriff shall not be liable to any proceedings whatever at the suit, or upon the complaint of the bank or banker, their or his assignee as aforesaid.'

The facts of the case, so far as they were considered as important to the decision of the Court, are fully stated in the opinion delivered by Mr. Justice Johnson.