Walker v. Bank of Washington.

On the face of the aforegoing draft was the following acceptance, to wit:

"Accepted, to be paid by me, when the bills shall have been. received and duly approved by the commandant of the navy yard. "ELIAS KANE."

On the 20th of February, 1840, Walker executed to the bank a bill of sale of all the beef which he had then on hand or should put up, reciting that he, Walker, stood largely indebted to the bank on loans and discounts obtained from it, and was anxious to secure the payment of notes that had been drawn or given, or might thereafter be drawn or given, &c., &c.

On the 2d of April, 1840, the following draft was drawn, which is referred to in one of the exceptions:

ELIAS KANE, Esq., navy agent, Washington, D. C.

"SIR-Please pay to James Adams, Esq., or order, the amount due me for delivery of navy beef, to be delivered by me, under my contract, at the navy yard, Brooklyn, New York.

"And oblige, sir, very respectfully, your ob't serv't, "April 2d, 1840. JNO. WALKER." On the face of the above was the following acceptance, to wit: "Accepted, to be paid by me, when the bills shall have been received and duly approved by the commandant of the navy yard, Brooklyn, New York. ELIAS KANE, Navy Agent."

On the 9th of May, 1840, the following note was executed upon which the suit was brought:

"[$10,000.]

City of Washington, May 9, 1840. "Thirty days after date I promise to pay to Henry Walker, or order, ten thousand dollars, for value received. Negotiable and payable at the Bank of Washington. JNO. WALKER."

"Credit the drawer."

It was endorsed by Henry Walker, Lewis Walker, and John Walker.

Not being paid at maturity, suit was brought upon it in May, 1840, and in 1841 the case came on for trial, when the following exceptions were taken, on the part of the defendant.

1st Bill of Exceptions.

"At the trial of the above cause, the plaintiffs having given evidence tending to prove the handwriting of the defendant to the promissory note declared upon, read it in evidence, and then rested.

"Whereupon the defendant then gave evidence, tending to show that the note dated on the 9th of May, 1840, was given in renewal of a previous note dated on the 6th of February, 1840, similarly signed and endorsed, payable ninety days after date; which said

Walker v. Bank of Washington.

note, of the 6th of February, 1840, was discounted by the plaintiffs, at the request of the defendant, for his accommodation, as a loan, on the 18th February, 1840, but not passed to his credit until the 22d February, 1840; at which time, last aforesaid, an officer of the plaintiffs deducted from the proceeds of said note the interest on the same, computed from the date of said note, (the 6th February, 1840,) for the period of ninety-four days, and that said note nowhere appeared on the books of the plaintiffs until the 18th February, 1840; that the whole amount credited by plaintiffs to the defendant, as the consideration of said note dated upon the 6th February, 1840, and discounted only upon the 18th February, 1840, and passed to defendant upon the 22d of same month, was the sum of $9,843 33; and that the sum of $156 67 was taken by said plaintiffs, as the interest upon said note, for the time the same was discounted. And further gave evidence, tending to show that the said note of the 6th of February, 1840, was surrendered to the defendant upon the execution of the said note of the 9th of May, 1840, (the said last mentioned note being but a renewal of the former,) and that the said plaintiffs credited the defendant, on account of the said note of the 9th of May, 1840, only the sum of $9,943 33, and took, as interest upon said last named note, the sum of $56 67, which was exacted from said defendant.

"Whereupon the plaintiffs gave evidence, tending to prove that, on the 20th of January, 1840, the defendant had checked out of plaintiffs' bank $1224 93; that, on the 6th of February, 1840, he had checked out of plaintiffs' bank $2500; and, on the 21st of February, 1840, he had checked out of said bank to the amount of upwards of $7000; all of which last named sums of money were charged to defendant on the books of the plaintiffs, and no moneys or funds appeared to his credit at the time of drawing out said last mentioned sums of money; and that, on the 22d day of February, 1840, the plaintiffs credited said defendant with $9,843 33, as the proceeds of said note dated the 6th February, 1840; and the balance then appearing to be due to defendant on the books of the plaintiffs, after charging him with the several amounts so as aforesaid drawn out of bank by him previous to the 22d of February, 1840, was $997 86; which balance was shown to the defendant, and assented to by him.

"The defendant then gave evidence tending to show that the said note, dated 6th February, 1840, was brought, on or after the 11th February, 1840, (it being a discount day,) by the president of the plaintiffs, or a book-keeper of said plaintiffs, to the discount clerk, (the witness,) and given to him as a note not done, or not passed by the board of directors; and that said note remained in the hands of such discount clerk until the 18th Iebruary, 1840, when it was passed by the said board; and on the 22d February, 1840, the sum of $9,843 33 was passed to defendant's credit as the nett proceeds

Walker v. Bank of Washington.

of said note, and that interest, at the rate of six per centum per annum on $10,000, computed from the date of said note, for ninety-four days, was reserved at the time of entering such credit, by direction of some officer of the plaintiffs; and that it was the usual practice of plaintiffs to take interest on discounts only from the time of making the discount; and that it does not appear that defendant was credited on plaintiffs' books with the interest computed from the 6th of February aforesaid.

"The defendant then asked the cashier of the plaintiffs, who was sworn as a witness in said cause, whether the amounts drawn out of bank by the defendant previous to 22d February, 1840, as aforesaid, were not charged on the books of the plaintiffs as overdrafts, and were not allowed as the personal credit of the defendant.

"Whereupon the said cashier answered, that he had no doubt but that the defendant was allowed to check upon said note of 6th February, 1840, before the same was entered to his credit on the books of the bank. And being further asked for the reasons of this opinion by the defendant's counsel, he stated that he had no recollection of said note's being in bank previous to the 18th February, 1840, or of its existence, or of any arrangement with reference to it previous to that date; and that the said amounts, so checked out previous to 22d February, 1840, would not have been paid on defendant's checks, but for the knowledge, on the part of the said cashier, that he (defendant) had a large contract with the Navy Department for the supply of beef, and that for antecedent liabilities the defendant had given to plaintiffs good collateral security; from which, however, no surplus resulted after paying said liabilities; and that the said advances made to the defendant after the 6th Februar, 1840, and previous to the 22d February, 1840, were made o security given, or to be given; but he does not know of any security given during that time, except the defendant's letter of 30th Janu ary, 1840, a bill of sale, by defendant to plaintiffs, of his barrellec beef, dated 20th February, 1840, and the two acceptances of the navy agent, dated 19th February, 1840, and 2d April, 1840, and the note, dated 6th of February, 1840, of which the said cashier has no recollection until the 18th of February, 1840; and that he is satisfied that said advances were not made on the personal credit of defendant. And, from all the above circumstances, he has no doubt that said note of 6th February, 1840, was in bank from the time of its date, and that defendant was allowed to check on said note from the day of its date.

"Whereupon the defendant moved the court to instruct the jury that the facts mentioned by said cashier are evidence in said cause, but the inferences or opinions of said cashier are not evidence; but the court refused to give such instructions as prayed, but instructed the jury that the inferences or opinions of said witness are not of themselves evidence of the facts so inferred, but that the facts stated VOL. III.-9 F 2

Walker v. Bank of Washington.

by the witness, as the ground of his inference or opinion, are competent to be given in evidence to the jury, 'together with the inference or opinion of the said witness; from which facts the jury are to judge whether such inferences and opinion are justified by the facts thus stated. Whereupon the defendant excepts to the said refusal and to the instructions so given, and this, his bill of exceptions, is signed, sealed, and enrolled, this 24th day of December, 1841."

Defendant's 2d Bill of Exceptions.

"After the evidence contained in the aforegoing bill of exceptions had been given, the defendant prayed the court to instruct the jury that, if the jury believe, from the evidence aforesaid, that the advances to defendant named in the evidence were not made upon the note of 6th February, 1840, and that the plaintiffs, upon discounting said note, received or reserved more than at the rate of six per centum per annum, then the jury may infer usury, from the whole evidence aforesaid, in said note of 6th February, 1840.' And 'if the jury believe, from the evidence aforesaid, that the note of the 9th of May, 1840, named in the evidence, was given in renewal of a former note of the defendant, dated on the 6th of February, 1840, payable in ninety days after date, and which last note was discounted by the plaintiffs, as a loan to the defendant, on the 18th day of February, 1840, but was not passed to the credit of the defendant until the 22d February, 1840, and that the said plaintiffs then charged and received interest upon the same from the date of the said note, to wit, from the 6th day of February, 1840, it is the taking above six per centum pen-annum for the loan of the money made to the defendant upon said note, and is usury; and the defendant is entitled to a verdict in his favour upon said note, notwithstanding the jury may find, from the evidence, that the defendant had overdrawn his account, as stated in the evidence, unless they further find that the said interest, reserved as aforesaid, was credited to defendant's account as a credit to take effect from the 6th February, 1840.' But the court refused to grant each of said prayers, though presented seriatim. Whereupon the defendant, excepts to the said refusal; and this, his bill of exceptions, is signed, sealed, and ordered to be enrolled, this 24th of December, 1841."

Defendant's 3d Bill of Exceptions.

"In addition to the evidence contained in the foregoing bill of exceptions, which is made part hereof, the defendant gave evidence tending to show that, in October, 1839, the plaintiffs suspended specie payments, and have not, since that time, paid their notes in specie or its equivalent until July, 1841; and further gave evidence tending to prove that the paying teller of the plaintiffs, according to his impression, would not have paid the checks of the defendant for the amounts credited to defendant as aforesaid, on the 22d and 28th

Walker v. Bank of Washington.

February, 1840, if drawn for the entire amounts in District bank paper or in the plaintiffs' paper, unless he had received special instructions to that effect from the president, or unless he, the paying teller, knew that the plaintiffs were at that time desirous of increasing the circulation of their own notes; that he considered he had a discretion on that subject, in absence of instructions, and has no recollection of having received any instructions in regard to the discounts to defendant, or any general instructions as to the mode of paying discounts at that time, though it is his impression that he would not have paid discounts to so large an amount in District bank paper or plaintiffs' paper at. that time; nor would they, at the date of said notes, have received on deposit paper of Virginia banks (they having also suspended at the same time) in large amounts, or to the amount of either of said notes, unless for the accommodation of a regular customer of the plaintiffs, and only in that case upon the understanding that he would receive back the said deposit in the same kind of funds; and that the plaintiffs would not, by their officers, have received payment of the notes in suit, in case their amounts had been tendered at the time of maturity, in the paper of Virginia banks, (all of which were in a state of suspension of specie payments,) and that the market value of Virginia bank notes, in the months of February, March, April, and May, 1840, in the city of Washington, (where the plaintiffs did business,) was from to 1 per cent. less than the notes of the banks in said District, or the notes of banks in Baltimore, Maryland.

"And the defendant farther gave evidence to show, that on the 30th January, 1840, he sent to the plaintiffs his written application for a loan, in these words, (see statement.) That he afterwards executed the note of the 6th February, 1840, named in the first bill of exceptions, and the note of the 25th February, 1840, now in suit; and then was passed to his credit, on the 22d February, 1840, on the books of the plaintiffs, the sum of $9,843 33, as the proceeds of the discount of said above-named note of the 6th February, 1840; and on the 28th February, 1840, the farther sum of $5,939 was passed to his credit on the books of the plaintiffs, as the proceeds of the discount of the note dated 25th February, 1840. That the defendant checked out of the plaintiffs' bank the said several amounts so credited to him, and he gave evidence to show that some of his checks for said amounts were specially made payable in Virginia notes, and were in that form paid by the plaintiffs. That a check for upwards. of $900, drawn by the defendant on plaintiffs on the 29th February, 1840, for part of the proceeds of the note of 25th February, 1840, passed to his credit as aforesaid, was also made yable in Virginia money on its face, but the plaintiffs, through their officers, refused to pay even Virginia money on said check, but against the wishes and request of the bearer, one Sinclair, (to whom the said cheek was given for value by said defendant,) paid the said check in notes of