CASES ARGUED AND DETERMINED IN THE Circuit Courts of the United States WITHIN THE SECOND CIRCUIT. ROBERT CODMAN and HENRY A. JOHNSON vs. THE VERMONT AND CANADA RAILROAD COMPANY. The decision in Codman v. Vermont & Canada R. R. Co., (16 Blatchf. C. C. R., 165,) adhered to. This suit being against the endorser of the notes, and the endorsement having been filled up when it was made, and ordering the contents of the notes to be paid to the bearer, and this having been done before the notes were put into circulation, the contract of the endorser was with the bearer, and no disability of the bearer to sue, as an assignee, could arise under § 11 of the Judiciary Act of September 24th, 1789, (1 U. S. Sta!. at Large, 79,) now § 629 of the Revised Statutes. It was of no consequence that the notary protesting the notes did not have the notes, as well as the coupons, to present for payment, at the time of making demand of payment. Evidence which counsel did not, on a trial, think would be material, and did not know of and so did not obtain, although it might easily have been discovered, will not, generally, be allowed to furnish ground for a new trial, although its materiality may arise from the views of the Court in deciding the cause. (Before WHEELER, J., Vermont, August 5th, 1879.) WHEELER, J. After the opinion heretofore filed in this cause was delivered, (16 Blatchf. C. C. R., 165,) and before VOL. XVII.-1 Codman v. The Vermont and Canada Railroad Company. judgment, the defendant moved for a new trial, for the purpose of introducing new evidence, to the effect that the notary making the protest conceded did not have the notes themselves, as well as the coupons, to present for payment, at the time of making demand of payment, and moved that the cause be dismissed for want of jurisdiction in this Court. The cause has been further heard upon these motions. The objection to the jurisdiction rests upon the proviso to section 11 of the Judiciary Act of September 24th, 1/89, (1 U. S. Stat. at Large, 79, now Rev. Stat. U. S., sec. 629,) which is: "That no Circuit Court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such Court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange." These are not foreign bills of exchange. The makers and payee were citizens of the same State, the notes themselves were made payable to order and not to the bearer, so that no suit could be brought against the makers, upon them, by any one but the payee, without an endorsement, which would be an assignment, and, as to suits against the makers, they come precisely within the terms of that proviso. (Gibson v. Chew, 16 Pet., 315; Dromgoole v. Farmers' Bank, 2 How., 211.) It was settled early, that notes payable to bearer were payable to any one, and not affected with the disabilities of the original holder, under this statute. (Bank of Kentucky v. Wister, 2 Pet., 318; Smith v. Clupp, 15 Pet., 125; White v. Vt. & Mass. R. R. Co., 21 How., 575.) This suit is against the endorser and not the payee. The endorsement was filled up when it was made, and ordered the contents of the notes paid to the bearer. The evidence showed that this was done before the notes were put into circulation at all. The contract of the endorser was with the bearer, who might be anybody, so that no assignment of that liability would be necessary, and no disability of the original payee to sue would follow the cause of action arising upon that liability. This is expressly stated by Mr. Justice Clif |