5 D.C. 518 (C.C.D.C. 1838), 901, Bank of Metropolis v. Moore

Docket Nº:901[1]
Citation:5 D.C. 518, 2 F.Cas. 679
Opinion Judge:(CRANCH, Circuit Judge, contra)
Party Name:BANK OF THE METROPOLIS v. MOORE.
Attorney:Mr. Coxe, for the plaintiffs, Brent & Brent, for the defendant, Mr. Coxe, contra.
Judge Panel:THRUSTON, Circuit Judge MORSELL, Circuit Judge CRANCH, Circuit Judge CRANCH, Circuit Judge, contra CRANCH, Circuit Judge, dissented

Page 518

5 D.C. 518 (C.C.D.C. 1838)

2 F.Cas. 679

BANK OF THE METROPOLIS

v.

MOORE.

No. 901 [1]

Circuit Court, District of Columbia.

Nov. 1838. [2]

At law. Action upon a promissory note by the Bank of the Metropolis against Thomas P. Moore. Judgment for plaintiff. This was subsequently affirmed by the supreme court in Moore v. Bank of the Metropolis, 13 Pet. (38 U. S.) 302.

Assumpsit upon the following promissory note: ‘ $5,000. Washington, 16th February, 1837. Sixth days after date, we jointly and severally promise to pay the president and directors of the bank of the Metropolis, or order, at the said bank, five thousand dollars, for value received. Richard M. Johnson, Thomas P. Moore, P. H. Pope, by their attorney, George Thomas.’ The first count of the declaration states, that on the 16th of February, 1837, the defendant and one Richard M. Johnson, and one P. H.Pope, by George Thomas, their attorney, at Washington county, made their note, & c., and thereby, sixty days after the date thereof, jointly and severally promised to pay, & c. The second count avers, that the defendant, on the 16th of February, 1837, by George Thomas, his attorney, at the county aforesaid, made his certain note, & c., and thereby, sixty days after the date thereof, promised to pay, & c.. To these were added the common money counts, one of which was for money had and received to the plaintiff's use. The cause came to trial upon the general issue.

Mr. Coxe, for the plaintiffs, offered in evidence the note of the 16th of February, 1837, and the following power of attorney to Mr. Thomas, who was also cashier of the plaintiff's bank. ‘ 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, the 29th day of February, 1836. Richard M. Johnson, (Seal.) P. H. Pope, (Seal.) T. P. Moore, (Seal.) Witness, Samuel Stettinius.’

Brent & Brent, for the defendant, objected to the plaintiff's counsel reading the note in evidence, because it appeared to be a joint and several note, whereas the power of attorney only authorized Mr. Thomas to sign a joint note. Every power must be strictly pursued. Bank of Columbia v. Patterson, 7 Cranch, [11 U. S.] 299.

Mr. Coxe, contra. The power of attorney recites that they had a joint and several note discounted by the bank, and the...

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