Union Bank Georgetown v. George Magruder

• Decision Date: 01 January 1833
• Citation: 8 L.Ed. 687,32 U.S. 287,7 Pet. 287
• Parties: UNION BANK of GEORGETOWN v. GEORGE B. MAGRUDER
• Court: U.S. Supreme Court

32 U.S. 287

7 Pet. 287

8 L.Ed. 687

UNION BANK of GEORGETOWN v. GEORGE B. MAGRUDER.

January Term, 1833

ERROR to the Circuit Court of the district of Columbia, and county of Washington. The case is fully stated in the opinion of the court.

Key, for the plaintiffs in error, cited, Thornton v. Wynn, 12 Wheat. 183; Lonsdale v. Brown, 4 W. C. C. 149; 4 Dall. 109; 3 Pet. 187; 7 East 231; Chitty on Bills 234, 202, 211, 236; 1 Esp. 303; 15 East 222; 2 Greenl. 207.

Coxe, for the defendant in error, cited, 1 Dane's Abr. 118; Bell v. Morrison, 1 Pet. 360; 12 Wheat. 186; 2 T. R. 713; 3 Bibb 102; 1 Saund. Plead. & Ev. 117-19, 141; 3 T. R. 635.

STORY, Justice, delivered the opinion of the court.

This cause was formerly before the court upon a writ of error to the circuit court of the district of Columbia, sitting for the county of Washington. The judgment then rendered was reversed (Magruder v. Union Bank of Georgetown, 3 Pet. 87), and a venire facias de novo awarded; upon which, a new trial having been had, the cause is again before us, upon a bill of exceptions taken by the plaintiffs at the last trial.

The action is brought by the plaintiffs, as indorsees, to recover the contents of a promissory note, made on the 8th of November 1817, by George Magruder, deceased, whereby he promised, seven years after date, to pay to George B. Magruder, the defendant, $643.21, with interest, for value received, and which was indorsed before it became due by the defendant to the plaintiffs.

There are several counts in the declaration. The first is founded on the liability of the defendant as indorser, and avers that the maker of the note died before the note became due, and the defendant took administration on his estate; and after the note became due, to wit, on the 11th day of November 1824, due demand of payment was made of the defendant, as administrator, who refused to pay the same, and, having due notice, became liable to pay the same. The second count alleges, that when the note became due, the same not having been demanded of the maker, nor protested for non-payment, and notice not having been given to the defendant (the defendant being before, and when the same became due, the administrator of the maker), and the defendant, well knowing that the same had not been paid, afterwards, on the 15th of November 1824, in consideration thereof, and in further consideration that the plaintiffs would not bring suit on the note against him as indorser, but would give time to him for the payment thereof (not saying for what time, or for a reasonable time), the defendant promised that he would, ultimately, and in a reasonable time, pay the same to the plaintiffs. Then follow the common money counts.

The bill of exceptions is in the following words: 'In the trial of this cause, the plaintiffs, to support the issues on their part, offered a competent witness, Alexander Ray, who proved, that two or three days after the note fell due, he had a conversation with defendant, asked him if he could arrange the note; that if he did not, probably the officers of the bank would be blamed, he said, no officer should lose anything by him, and that there was some property on Cherry street, which witness understood that George Magruder in his lifetime owned; that the would repair it, and that it would become valuable. Mr. Thompson had had a previous conversation with him; the defendant had not been informed by me, that the note was over due, and not demanded. Also, James Thompson, who proved, that as soon as it was discovered that the note was over, he and the cashier conversed about it; and about three or four days after it was over due, he determined to call on defendant, and request him to arrange it, and state the circumstances attending the note; that he then called on defendant, and found him from home; left word, he wanted him, a day or two after, defendant called at bank; he went aside with him, told him the circumstances attending the neglect in relation to the note, and requested him to take time and determine what he would do as to arranging the note; telling him that he did not wish defendant to say a word to him to commit himself, but to consider whether, if he did not arrange it, the bank might not do him a greater injury than the amount of the note; that some time after this conversation, he had another with defendant; that the defendant asked him, if the...