US SUPREME COURT DECISIONS

The defendant in an action in the circuit court, had with others, received the proceeds of a joint and several promissory note discounted for them at the Bank of the Metropolis, and this note was afterwards renewed by their attorney under a power of attorney authorizing him to give a joint note, but he gave a joint and several note, the proceeds of which the attorney received, and appropriated to pay the note already discounted at the Bank. The interest of the sum borrowed was paid out of the money of the parties to the note. Held that although the power of attorney may not have been executed in exact conformity to its terms and may not have authorized the giving of a joint and several note, a question the court did not decide, yet the receipt of the proceeds of the note by the attorney, and the appropriation thereof to the payment of the former note was sufficient evidence to sustain the money counts in the declaration.

When an exception is taken on a trial to evidence after it has been given without objection to the whole matter stated in the exception, if any part of it was admissible, the objection may be properly overruled. It is the duty of a party taking exceptions to evidence to point out the part excepted to where the evidence consisted of a number of particulars, so that the attention of the court may be drawn to the particular objections.

The Bank of the Metropolis, on 27 September, 1837, instituted an action of assumpsit against Thomas P. Moore the plaintiff in error, on a promissory note dated 16 February, 1837, payable sixty days after date, by which the defendant, Thomas P. Moore P. H. Pope, and Richard M. Johnson by George Thomas, their attorney at Washington, jointly and severally promised to pay to the plaintiffs the sum of five thousand dollars current money of the United States, for value received.

The declaration also contained a count on the same note, stating it to be the note of Thomas P. Moore to the plaintiffs, and also a count for the amount of the same note as so much money paid, laid out and expended, at the special instance and request of the defendant, and for the same sum had and received by the defendant to the use of the plaintiffs.

The defendant pleaded nonassumpsit, and the cause was tried before a jury in November, 1838, and a verdict and judgment rendered in favor of the plaintiffs. The defendant filed two bills of exceptions, to the ruling of the court on matters presented on the trial, and he afterwards prosecuted this writ of error.

The first bill of exceptions stated:

"On the trial of this cause the plaintiffs, to sustain the action on their part, proved by a competent witness, that on 27 March, 1834, the said defendant with Richard M. Johnson and P. H. Pope, executed their joint and several note, and on the same day by their checks, drew from the said plaintiffs the proceeds thereof, which had been carried to their credit; that said note was not paid at maturity, but lay over unpaid until 30 January, 1836, when it was cancelled; that on 30 January,

Page 38 U. S. 303

1836, the said parties executed and delivered to the said plaintiffs their promissory note, which was discounted by said plaintiffs and the proceeds thereof carried to the credit of said drawers, and the interest in arrears paid. That on 29 February, 1836, the said parties executed and delivered to George Thomas, at that time cashier of the Bank of Metropolis, a power of attorney, which said power of attorney was given for the single purpose of acting for said parties in relation to said last mentioned note and the renewal thereof, and that the said George Thomas, professing to act by virtue of said power of attorney, under said power of attorney made and executed the note mentioned and described in the declaration; that the same was then discounted by said bank, the proceeds carried to the credit of the said drawers, and the arrears of interest upon the former and last preceding note, together with the discount of this note paid and credited on said account, and the said note dated 30 January, 1836, was cancelled, but witness does not recollect by what person said interest or discount was paid. To the admissibility of which notes or any of them, or any matter above stated in evidence, the defendant objects, but the court overruled the objection and permitted all of said notes, and the proceedings in regard to them and the matters stated, to be given in evidence to the jury. To which opinion of the court the defendant excepted."

The second bill of exceptions stated:

"In addition to the evidence contained in the aforegoing bill of exceptions, the plaintiffs offered evidence tending to prove that the banks in Washington County in the District of Columbia, have been in the practice (some banks for less, and some for more than twenty years) of taking and discounting notes in the form of the one now in suit, made directly to the banks or some of the officers for their use whenever offered, and that the banks preferred to loan upon such paper; that the reason of this practice has been one of mutual convenience to the borrower and the banks, the first being saved from the costs of protest, and the last being saved the risk of a failure to give notice to the endorser, and that it was very usual for the banks to lend money on a pledge of stock, taking in return the single note of the borrower, payable to the banks, or some of their officers, without endorsement. The plaintiffs further gave evidence by competent testimony tending to prove that it had been the practice of and usage of the various banks in Washington County in this District, to discount, indiscriminately, paper on which there was an endorser or endorsers, or on which all the parties were drawers, and the paper drawn directly to the bank itself, or some of its officers, acting in behalf of the bank; that both were considered equally the subjects of discount, but that the witness cannot recollect at this moment any particular instance in which, when all the parties were nonresidents, as is and was the case with the alleged makers of this note, the bank has discounted on that paper alone, though he has no doubt such cases existed; but that in all of the said banks, the major part of the accommodation paper discounted

Page 38 U. S. 304

was in the form of notes drawn by one party in favor of another person who endorsed it to the bank, and that this particular note in suit was discounted in the usual manner. The defendant then offered evidence tending to prove that on 27 March, 1834, the plaintiffs discounted the joint and several note of R. M. Johnson P. H. Pope, and the defendant, for the amount of $5,000 (being the same note inserted in the first bill of exceptions), and that at the time of discounting said note, the plaintiffs reserved out of the proceeds thereof the sum of $103.33, as interest, or discount upon the same, for four months and four days; that the said note lay over unpaid until 30 January, 1836, when the sum of $450 was paid on the same, as interest in arrear; and that on the same day a second note was given by the same parties to the plaintiffs (the same note which is also inserted in the first bill of exceptions) in renewal of the first described note, payable in six months from its date, which was discounted by the plaintiffs, who at the time of said last mentioned discounting received the sum of $153.33, as interest on the same for six months and four days; that the said second note also lay over until 16 February, 1837, when the sum of $166.67, was paid on it as interest in arrear, from 30 July, 1836, to 16 February, 1837, and on the same day the note in suit was given in renewal of the last described note, which said note in suit was discounted on the day of its date by the plaintiffs, who received on said day of its date, the sum of fifty-three dollars and thirty-three cents, as the interest in advance, for sixty-four days. Whereupon the defendant prayed the court to instruct the jury as follows: "

"1st. If the jury believe from the evidence, that the note in suit was given in renewal of other notes previously given by the same parties to the plaintiffs, and that the plaintiffs received or reserved in advance, as discount, the interest, at the rate of six percentum per annum, on the amount of debt mentioned in said notes, or any of them, for the times they or any of them had to run, then the receipt or reservation of said interest in advance, is evidence of usury, and the jury may infer usury from the same."

"2d. That if the jury believe from the evidence, that the note in suit was given in renewal of other notes successively given by the same parties to the plaintiffs, for the amount of $5,000 loaned to the said parties by the plaintiffs, and that at the time of the original loan the plaintiffs reserved the interest on the said sum of $5,000, at the rate of six percentum per annum, for the time the original note had to run, or that at the time of renewing or discounting the note in suit, the plaintiffs received of the makers thereof, or anyone for them, the interest in advance for the period of sixty-four days, then said facts are evidence of usury in the transaction, and the jury may infer usury from said facts on the note in suit."

"3d. That if the jury believe from the evidence, that the note in suit was given to the plaintiffs in renewal of a note for the same amount, drawn by the same parties, directly to the plaintiffs, as

Page 38 U. S. 305

payees, payable six months after date, which had been previously discounted by the plaintiffs, for the accommodation of the said parties, and that on said note, drawn at six months, the plaintiffs received at the time of discounting it, the interest in advance for six months and four days, at the rate of six percent per annum on the amount of said note, then the said facts are evidence of usury, and it is competent for the jury to infer usury in the note in suit."

"4th. If the jury believe from the evidence, that the plaintiffs received on the day of the date of the note in suit, the sum of $166.67, as and for interest alleged to be due from 30 July, 1836, to 16 February, 1837 (six months and seventeen days), on a prior note for $5,000, given by the same parties to the plaintiffs, falling due on the said 30 July, 1836, and that the note in suit was given in renewal of said note, falling due on 30 July, 1836, then the plaintiffs have taken illegal interest, and it is competent for the jury to infer that the note in suit was given in pursuance of an usurious agreement."

"5th. That the written power of attorney, executed to George Thomas by the defendant, together with R. M. Johnson and P. H. Pope, gives no authority to said Thomas to execute a joint and several note in behalf of said parties, and that the defendant cannot be charged in this action by reason of any joint and several note, purporting to be executed by the said R. M. Johnson P. H. Pope, and this defendant, by the said Thomas, as their attorney, under said written power."

But the court refused to give any of the said instructions to the jury, and the defendant excepted.

The power of attorney referred to in the bills of exceptions was in the following terms.

"Whereas we have a joint and several note of hand discounted in the Bank of the Metropolis -- Now"

"Know all men by these presents, that we, Richard M. Johnson Thomas P. Moore and P. H. Pope, all of the State of Kentucky, do hereby nominate, constitute and appoint George Thomas, of the City of Washington, our true and lawful attorney in fact, and by these presents do authorize and empower him, for us, and in our names, to sign our joint note to the president and directors of the Bank of the Metropolis, for five thousand dollars, for our accommodation, and the same to renew, from time to time, as it may become due, for the whole or any part thereof -- hereby ratifying and confirming all and every the act and acts of our said attorney, in and about the premises, so long as the bank shall continue the accommodation to us. In witness whereof, we have hereunto set our hands and seals, at the City of Washington, 29 February, 1836."

"RH. M. JOHNSON [SEAL]"

"P. H. POPE [SEAL]"

"T. P. MOORE [SEAL]"

"Witness, SAM. STETTINIUS "

Page 38 U. S. 307