Mcallister v. Smith

• Decision Date: 30 June 1856
• Citation: 1856 WL 5326,17 Ill. 328,65 Am.Dec. 651,7 Peck 328
• Parties: EDWARD MCALLISTER, Appellant.v.WILLIAM SMITH ET AL., Appellees.
• Court: Illinois Supreme Court

17 Ill. 328
1856 WL 5326 (Ill.)
65 Am.Dec. 651
7 Peck (IL) 328

EDWARD MCALLISTER, Appellant.
v.
WILLIAM SMITH ET AL., Appellees.

Supreme Court of Illinois.

June Term, 1856.

THE plaintiffs below brought this action, which is assumpsit, against the defendant as the acceptor of five several bills of exchange. The declaration contains five special counts, and the common counts with copies of the bills set out.

The first count is upon a bill of exchange drawn by McAllister & Co., bearing date the 2nd day of September, A. D. 1854, upon the defendant below, for the sum of two thousand dollars, payable to the order of the drawers, at the Merchants' and Drovers' Bank of Illinois, ten days after date, accepted by the defendant and indorsed by the drawers to the plaintiffs.

The second count is upon a bill of exchange, drawn by McAllister & Co., bearing date the 5th day of September, 1854, upon the defendant, for the sum of one thousand dollars, payable to the order of the drawers, at the office of Wadsworth and Sheldon, in the city and State of New York, sixty days after date, accepted by the defendant, and indorsed by the drawers to the plaintiffs.

The third count is upon a bill drawn by McAllister, bearing date the 7th day of September, 1854, upon the defendant, for the sum of one thousand dollars, and accepted by the defendant, payable at the office of Messrs. Wadsworth and Sheldon, New York, to the order of the drawers, sixty days after date, and indorsed by the drawers to the plaintiffs.

[17 Ill. 329]

The fourth count is upon a bill of exchange drawn by McAllister & Co., bearing date the 11th day of September, 1854, upon the defendant for the sum of two thousand dollars, payable to the order of the drawers, sixty days after date, and accepted by the defendant, payable at Wadsworth and Sheldon's, New York, and indorsed by the drawers to the plaintiffs.

The fifth count is upon a bill drawn by McAllister & Co., bearing date the 18th day of September, 1854, upon the defendant, for the sum of one thousand dollars, payable to the order of the drawers, sixty days after date, accepted by the defendant, payable at the office of Wadsworth and Sheldon, New York, and indorsed by the drawers to the plaintiffs.

The common counts are in the usual form.

The defendant pleaded, firstly, the general issue to the whole declaration.

Secondly--To the second, third, fourth and fifth counts in the declaration, specially, that previous to the making of said bills in said counts mentioned, to wit: On the 20th day of August, A. D. 1854, at Joliet, in the county of Will, &c., the Merchants' and Drovers' Bank of Illinois, was a body corporate created under the statute of the State of Illinois, entitled “An act to establish a general system of banking;” that said Wm. Smith was then and there and still is the president, and the said R. Eaton Goodell the cashier thereof. That said bank being such body corporate, and the plaintiffs president and cashier thereof, it was, to wit, at Joliet aforesaid, on the day aforesaid, corruptly and contrary to the provisions of the statute of the State of New York, hereinafter set forth, agreed by and between the said bank, by the said plaintiffs, the agents and officers thereof as aforesaid of the one part, and the said McAllister & Co., and the said defendant of the other part, that the said bank should lend and advance to the said McAllister & Co. and to this defendant for the purpose of buying by the parties last named a quantity of grass seed, during the then coming fall, such sums of money as they, the said parties last named, should desire, not exceeding the sum of seven thousand dollars, in manner following, that is to say: in such sums as should from time to time be required by the said McAllister & Co., and the said defendant, for the purpose aforesaid; and should forbear and give day of payment of said sums to be so lent and advanced at the said bank as aforesaid, and each and every thereof, for the period, to wit, of sixty days upon each, from the time of advancing the same, and the said sums to be so advanced were each to be paid in the city and State of New York, reference being had to the laws of said State by said parties in the making of such corrupt agreement and that for

[17 Ill. 330]

the forbearing and giving day of payment of the said sums of money, so to be advanced as aforesaid by the said bank, the said McAllister & Co. and the defendant should give and pay to the said bank as interest, at the rate of twelve dollars for a hundred, for one year upon all the money to be so advanced, by the said bank as aforesaid, besides the difference in exchange between Joliet and New York.

And to secure the repayment of said sums of money so to be lent, the said McAllister & Co., should draw and indorse and the defendant accept a bill of exchange payable in the city of New York, for such an amount as would cover the sum advanced, with the interest at the rate aforesaid added; which draft or bill, so made, drawn, indorsed and accepted, should be delivered to said bank at the time of receiving the money as aforesaid.

The plea alleges the advancing of the money and giving said bills in pursuance of the said agreement, and that the whole amount of money received did not exceed in all the sum of four thousand eight hundred and ninety-five dollars, and that the amount agreed to be received as interest for such loan exceeded the rate of seven dollars for the loan of one hundred for one year. The plea sets out the New York statute, alleges that said bills are void by said statute, and the premise concluding with a verification, &c.

The third plea is likewise to the second, third, fourth and fifth counts of the declaration, which are framed upon the bills payable in New York, and is the same as the foregoing, except that the corrupt agreement is alleged to have been made between the plaintiffs, of the one part, and McAllister & Co., of the other part, to loan by the...