MCNIEL V. HOLBROOK, 37 U. S. 84 (1838)

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U.S. Supreme Court

McNiel v. Holbrook, 37 U.S. 12 Pet. 84 84 (1838)

McNiel v. Holbrook

37 U.S. (12 Pet.) 84


In an action on four promissory notes, one of which was drawn by the defendant in favor of the plaintiff and the others were drawn by the defendant in favor of other persons who had endorsed them to the plaintiff, parol evidence was properly admitted that the defendant acknowledged that he was indebted to the plaintiff in the amount of the notes and offered to confess judgment in the course of a negotiation with the plaintiff's counsel, although the negotiation fell through and although no proof was given of the handwriting or signatures of the endorsers of the notes. This case does not come within the reason or principle of the rule which excludes offers to pay made by way of compromise upon a disputed claim and to buy peace.

The court is not bound to give any hypothetical direction to the jury and to leave them to find a fact where no evidence of such fact is offered nor any evidence from which it can be inferred.

The admissions of a defendant that he is indebted to the plaintiff on promissory notes, when proved by competent testimony, are sufficient evidence of the transfer of negotiable paper, without proof of the handwriting of the payer. Whether the evidence was legally competent for that purpose or not is a question for the court, and not for the jury, in the absence of all contradictory testimony.

By the Act of the Legislature of Georgia of 15 December, 1810, the assignment or endorsement of a promissory note is made sufficient evidence thereof without the necessity of proving the handwriting of the assignor. The Judiciary Act of 1789 declares that the laws of the several states, except when the constitution, treaties, or statutes of the United States require otherwise, are to be rules of decision in the courts of the United States in trials at common law where they apply. The Court does not perceive any sufficient reason for construing this act of Congress so as to exclude from its provisions those statutes of the several states which prescribe rules of evidence in civil cases in trials at common law.

The object of the law of Congress was to make the rules of decision of the courts of the United States the same with those of the states, taking care to preserve the rights of the United States by the exceptions contained in the section of the Judiciary Act. Justice to the citizens of the United States required this to be done, and the natural import of the words used in the act of Congress includes the laws in relation to evidence as well as the laws in relation to property.

The Court refused to allow ten percentum per annum interest as damages for suing out the writ of error in this case on the amount of the judgment in the circuit court under the 17th rule of the Court. The case was not considered as one where the writ of error was sued out merely for delay.

In the Circuit Court of the United States for the District of Georgia, Lowell Holbrook instituted an action on four promissory notes, one chanrobles.com-red

Page 37 U. S. 85

of which was drawn by the plaintiff in error in favor of Lowell Holbrook, and the three other notes were drawn in favor 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 McNiel, 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 McNiel had repeatedly, and as late as November 1, 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 3, 1836, and then was only not completed from the inability of John McNiel 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. chanrobles.com-red

Page 37 U. S. 86


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