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U.S. Supreme Court

Bank of the United States v. Hatch, 31 U.S. 6 Pet. 250 250 (1832)

Bank of the United States v. Hatch

31 U.S. (6 Pet.) 250


A suit was instituted by the bank against Pearson, the drawer of a bill of exchange endorsed by Hatch, which suit stood for trial at an approaching term. The attorney and agent of the Bank agreed with Pearson that the suit against him should be continued without judgment until the term after that at which judgment would have been entered if Pearson would permit a person in confinement under an execution at his suit to attend a distant court as a witness for the bank in a suit in which the bank was plaintiff. The witness was permitted to attend the court, and the suit against Pearson was continued agreeably to the said agreement.

By the court:

"This was an agreement for a valuable consideration, and not a mere voluntary and discretionary exercise of authority on the part of the agent of the bank. It was a virtual discharge of the endorser of the bill."

The case of McLemore v. Powell, 12 Wheat, 584, cited and confirmed.

The notary public, on the nonpayment of a bill of exchange, left a notice of the same for the endorser at a private boarding house, where the endorser lodged. Calling at the boarding house and inquiring for the endorser of a bill of a fellow boarder, he was informed that he was not within, and he then left the notice with the fellow boarder, requesting him to leave it with the endorser. Held that this was sufficient notice to the endorser to make him liable for the payment of the bill.

This action was brought by the plaintiffs in error, in the Circuit Court of the United States for the District of Ohio, against William S. Hatch, by scire facias upon a judgment obtained against Elijah Pearson, in a suit brought against him and the said William S. Hatch, in which the marshal returned "not found" as to William S. Hatch.

The action was upon a bill of exchange drawn by Elijah Pearson and endorsed by William S. Hatch. The issue was joined upon the plea of nonassumpsit.

At the trial, the defendant offered in evidence a deposition of one John M. Ferry, to which the counsel of the plaintiffs objected on the grounds stated in the opinion of the Court, which objection was overruled by the court and the deposition read. To this opinion of the court the plaintiffs' counsel excepted.

Page 31 U. S. 251

The jury found the following special verdict, to-wit:

"And afterwards, to-wit, at the December term of said court in the year last aforesaid, came the parties, by their said attorneys, and thereupon, for trying the issue joined, came a jury, which found that E. Pearson made the bill of exchange, a copy of which is attached to the declaration of the said plaintiffs in the original suit against said Pearson, the drawer of said bill, and that the said bill was regularly endorsed by the present defendant Hatch. It also found that on 25 July in the year 1820, said bill of exchange was duly protested for nonpayment, and that on said day last mentioned and on the succeeding day, the said defendant Hatch was boarding at the house of Henry Bainbridge in the City of Cincinnati; that on 26 July in the year 1820, the notary public by whom said bill was protested called at the house of said Bainbridge and inquired for said Hatch, and was informed by a Mr. Young that said Hatch was not within; the said notary then left a written notice of said protest with said Young, who was at that time in the house aforesaid, and requested him to deliver said notice to said Hatch, and that in the summer of said year 1820, said Young was a boarder at said house. It also finds that a suit was commenced against said Pearson, the drawer, on said bill of exchange, which suit stood for trial at the September term in the year 1822 of the Circuit Court of the United States for the District of Ohio. It also finds that, previous to the year 1822, one Griffin Yeatman was confined on the jail limits of Hamilton County in said state on a 'capias ad respondendum' issued at the instance of and on a judgment in favor of said Pearson. That said Yeatman was a material witness for the plaintiffs in a number of suits then pending in said court; that one George W. Jones, who was the then agent for plaintiffs, and one William M. Worthington, the then attorney for the plaintiffs, agreed with the said Pearson that, in consideration he, the said Pearson, would permit the said Yeatman to leave the said jail limits and attend said court during the term aforesaid, then the suit then pending in said court against said Pearson on said bill of exchange should be continued without judgment until the term of said court next ensuing said September term, A.D. 1822. That in pursuance of this agreement, the said Pearson permitted the

Page 31 U. S. 252

said Yeatman to leave said jail limits and attend said court, and that said suit against said Pearson was continued agreeably to said agreement. Now, therefore, if upon this finding the court shall be of opinion that the plaintiff is entitled to judgment, then the jury finds for the plaintiff to recover of the defendant the amount of said bill, together with the interest thereon; but if the court shall be of opinion upon the said finding that the defendant is entitled to a judgment, then, and in that case, the jury finds for the defendant."

Upon this special verdict, the court below gave judgment for the defendant, and the plaintiffs below thereupon prosecuted this writ of error.

Page 31 U. S. 254

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