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U.S. Supreme Court

Bank of the United States v. Carneal, 27 U.S. 2 Pet. 543 543 (1829)

Bank of the United States v. Carneal

27 U.S. (2 Pet.) 543


The evidence in the case was that the day when the note became due, the bank being the holder thereof, and it being payable there, after the usual banking hours were over it was delivered to a notary by the officers of the bank, they informing him at the time that there were no funds there for the payment of the note. This was a sufficient proof of due demand of payment.

When a note is payable at a bank, it is not necessary to make any personal demand upon the maker elsewhere. It is his duty to be at the bank within the usual hours of business to pay the same, and if he omits so to do and a demand is there made of payment by the holder within those hours, and it is refused or neglected to be made, the holder is entitled to maintain his action for such dishonor.

It is difficult to lay down any universal rule as to what is due diligence in respect to notice to endorsers. Many cases must be decided upon their own particular circumstances, however desirable it may be, when practicable, to lay down a general rule.

When notice is sent by the mail, it is sufficient to direct it to the town where the party resides if it is a post town; if it is not, then to the post office or post town nearest to his residence, if known. But the rule, as to the nearest post office, is not of universal application, for if the party is in the habit of receiving his letters at a more distant post office, or through a more circuitous route, and the fact is known to the person sending notice, notice sent by the latter mode will be good. And where the party is in the habit of receiving his letters at various post offices to suit his own convenience or business, it may be sufficient to send it to either.

A suggestion was made at the bar that the letter to the endorser stating the demand and dishonor of the note is not sufficient unless the party sending it also informs the endorser that he is looked to for payment. But where such notice is sent by the holder or by his holder, it necessarily implies such a responsibility over.

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 authorizing 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 chanrobles.com-red

Page 27 U. S. 544

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 nonassumpsit, 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-endorser with William Lytle, upon a promissory note, made and executed by the said William Steele, the said Carneal and Lytle being endorsers, 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 17 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 endorsement aforesaid, and had given his notes for the payment of a large sum of money, to-wit, the sum of $40,000, upon account of and in satisfaction of his said

Page 27 U. S. 545

liabilities to the plaintiffs, including the endorsement 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 endorsers 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 anything 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,"


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.

On the trial in the circuit Court of Ohio, after the evidence was closed, the defendant's counsel moved the court to instruct the jury as in case of a nonsuit

"upon the ground that the evidence adduced by the plaintiffs was not sufficient in

Page 27 U. S. 546

law to charge the defendant as endorser of the note aforesaid, and the court, upon the motion aforesaid, decided that the evidence in writing adduced by the plaintiffs was insufficient in law to charge the defendant and render him liable as endorser of the note aforesaid, and so charged the jury, to which opinion of the court and charge to the jury the plaintiffs by their counsel except and pray the court that this, their bill of exceptions, may be signed, sealed, and made a part of the record, which is hereby ordered."

The plaintiffs, by their counsel, moved the court to charge the jury that, under the present state of the pleadings in the cause, it was not necessary for the plaintiffs to prove that they gave notice to the defendant of the nonpayment of the said note at the time the same became due and payable in order to charge the said defendant, which instruction the court refused to give the said jury, and on the contrary charged the said jury that it was incumbent upon the plaintiffs to prove such notice. To which opinion and charge of the court, the plaintiffs by their counsel excepted and prayed that this, their bill of exceptions may also be signed, sealed, and made a part of the record. All which was ordered by the court. chanrobles.com-red

Page 27 U. S. 547


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