IN error to the Circuit Court of the United States for the Southern District of Alabama. In the Circuit Court of Alabama an action was instituted on a promissory note, by the plaintiff in error, against the defendants; and a verdict and judgment were entered for the defendants. The plaintiff took exception to the charge of the Court, and prosecuted this writ of error. The facts of the case, and the matters which were the subjects of the exceptions taken to the rulings of the Court, are fully stated in the opinion of the Court. The case was argued at January term, 1839, by Mr. Ogden, for the plaintiff in error; and by Mr. Van De Graff, for the defendants. It was held under advisement, for a reference to a statute of Alabama, until this term.
The opinion of the court was delivered by: Mr. Justice Catron delivered the opinion of the Court.
This is an action of assumpsit by the assignee of a note against the makers. The questions of law arising in this cause depend on the construction of a note of hand, in the following words:
'Selma, Dallas County, Alabama, March 1st, 1836.
'Eleven months after date, we, Harris Brantly, Peyton S. Graves, and Hugh Ferguson, jointly and severally, promise to pay Andrew Armstrong, cashier, or bearer, two thousand dollars, value received, negotiable and payable at the Branch Bank of the state of Alabama, at Mobile.
The note had on it the two endorsements of Diego M'Voy and William D. Primrose; and that of Taulmin, Hazard, and Company was stricken out. On the face of the note there was, in pencil, the figures 169.
The defendants, the three makers, introduced evidence to prove that the note, in its present form, (except the endorsements,) was sent by one of the makers to M'Voy, who was his factor in Mobile, to be offered for discount in the Branch Bank of the state in that city as an accommodation note; the proceeds of which were to be forwarded to said maker. That the note was offered for discount and rejected. The factor then proposed to raise money on the note for his own use, without the knowledge of the makers, and intended to conceal the appropriation of the note from them. The first person to whom he offered to sell the note deemed the attempt a fraud, and refused to purchase. M'Voy then endorsed and transferred the note to Primrose for one thousand two hundred dollars, communicating to him it had been offered for discount at the bank and rejected.
Taulmin, Hazard, and Company held a note for three thousand two hundred and fifty dollars, on Black, endorsed by Vail and Dade, and by Primrose, and which was past due; to discharge which, in part, Primrose transferred the note in controversy to Taulmin, Hazard, and Company; and Taulmin, Hazard, and Company endorsed the same before its maturity, to the plaintiff, ...