McLemore Powell

• Decision Date: 20 February 1827
• Citation: 12 Wheat. 554,6 L.Ed. 726,25 U.S. 554
• Parties: MCLEMORE, Plaintiff in Error, against POWELL and others, Defendants in Error
• Court: U.S. Supreme Court

25 U.S. 554

6 L.Ed. 726

12 Wheat. 554

MCLEMORE, Plaintiff in Error, against POWELL and others,

Defendants in Error.

February 20, 1827

Feb. 15th.

THIS cause was argued by Mr. White and Mr. Eaton for the plaintiff in error, and by Mr. Webster and Mr. Bliss for the defendants in error

Feb. 20th.

Mr. Justice STORY delivered the opinion of the Court.

This is a writ of error to the Circuit Court of the United States for the District of West Tennessee.

The original action was assumpsit, brought by Powell, Fosters & Co. as holders of a bill of exchange, drawn by one Thomas Fletcher, in May, 1819, at Nashville, upon Messrs. McNeil, Fisk and Rutherford, at New Orleans, payable to Thomas Read, or order, for two thousand dollars, in sixty days after date, and by him endorsed to the defendant, John C. McLemore, and by him to the plaintiffs. The bill, upon presentment for acceptance, was dishonoured, and due notice of the dishonour was given to the defendant.

At the trial, upon the general issue, Thomas Fletcher, the drawer, was, under a release from the defendant, McLemore, examined as a witness, and, among other things, testified that, in the month of October following the dishonour of the bill, 'one of the plaintiffs applied to him at Nashville for the money on the bill, and threatened to sue immediately if an arrangement was not made to pay the bill. The witness then proposed to the plaintiff, if he would indulge him four or five weeks, he would himself, to a certainty, pay the bill. To this the plaintiff agreed, and told the witness he was going to Louisville, Kentucky, and would return by Nashville about the expiration of that time, and would receive said payment. Since said time the witness has never seen said plaintiff.' The witness farther testified, that the defendant was an accommodation endorser for him on the bill; that the plaintiff told him that the bill would be left with a Mr. Washington at Nashville; that he expected he would himself be at that place at the time agreed on, but that, if he did not come, he would give the instructions to Mr. Washington, by letter, what to do if the witness did not pay at the expiration of the time agreed on. It did not appear that any consideration was paid or stipulated for this delay; and no suit was commenced until after this period had elapsed. The district judge instructed the jury, that if they believed the conversation above stated amounted to no more than an agreement that a suit should not be brought for four or five weeks, and that no premium or consideration was given or paid, or to be paid by Fletcher, the endorsers were not discharged that an agreement for giving day must be an obligatory contract for a consideration which ties up the hands of the creditor, and disables him from suing, thereby affecting the interests and rights of the endorser; that the endorser has a right to require and demand of the creditor to bring a suit against the drawer, and if he has disabled himself from bringing a suit by a contract for a consideration, he has thereby released the endorser; and that, if the jury were satisfied from the testimony, that time was given for a valuable consideration paid, or to be paid, or that a new security was taken by the holder, that the endorser was discharged and absolved from all the obligations of the endorsement.

Under this instruction, the jury found a verdict for the plaintiffs, upon which there was judgment given in their favour. A bill of exceptions was taken to the charge of the Court; and the present writ of error is brought for the purpose of ascertaining its legal correctness.

It is unnecessary to give any opinion upon that part of the charge which respects the right of an endorser to require the holder to commence a...