IN error to the circuit court of the United States for the county of Alexandria, in the District of Columbia.
This was an action in the circuit court of the county of Alexandria, instituted by the plaintiffs in error against the defendant, on a promissory note drawn by H. Peake, and indorsed by the defendant, payable and negotiable at the Bank of Alexandria.
The first count in the declaration sets forth the liability of the defendant on a note for 1400 dollars, dated the 23d day of June 1829, and payable in sixty days from the date thereof. The declaration states, that after the time limited in the note for the payment thereof, viz. on the 25th day of August 1829, the note was shown and presented to the drawer at the bank, and payment requested of the same, which was refused, of which notice was afterwards, on the said 25th day of August, given to the defendant. The second count was for the sum of 1500 dollars, money laid out and expended. The defendant pleaded non assumpsit, and on the trial of the issue the jury found the following special verdict.
'We, of the jury, find that one Humphrey Peake, on the 14th day of March 1826, obtained, for his own accommodation, a discount at the bank of the plaintiffs, for the sum of 1457 dollars and 60 cents, on his note for that amount, indorsed by defendant on the day and year aforesaid, payable sixty days after date; that the said discount was regularly continued from that time until the 5th day of February 1828, by new notes of the said Humphrey Peake for this same sum, indorsed by the defendant, and discounted at the said bank, to take up the preceding notes, the sums discounted on which new notes were regularly so applied; that on the said 5th day of February 1828, a note of the said Humphrey Peake for 1457 dollars, of that date, payable sixty days after date to the defendant, and by him indorsed, negotiable and payable at the said bank, was there discounted towards taking up a note of the said Humphrey, indorsed by defendant, and discounted as aforesaid, for the sum of 1457 dollars and 60 cents, which became due on the said 5th day of February 1828; and that the discount so made on the said note of 1457 dollars, on the said 5th of February, was regularly continued by a series of notes of the said Humphrey, indorsed by the defendant for the said last mentioned sum, negotiable and payable at said bank, until the 23d of June 1829; all which discounts, so made, were applied regularly towards the discharge of the notes before discounted as aforesaid at the said bank. We find that, on the 23d day of June 1829, a note of the said Humphrey Peake for the sum of 1457 dollars, indorsed and discounted as aforesaid, became due and payable at the said bank; and that, on the said 23d day of June 1829, the note in the declaration mentioned, was, at the instance of the said Humphrey, discounted at the said bank as and for a note of 1457 dollars, for the purpose of taking up the note of the said Humphrey, indorsed and discounted as aforesaid, which became due on the said 23d of June; and that the sum of 1441 dollars and 45 cents, the discount so made, was applied towards that purpose: that, when the said discount was made, the said note was, from reference to the figures in the margin only, mistaken as a note for 1457 dollars. We find that the body and signature of the said note, dated the 23d day of June, including the date and figures in the margin, are wholly in the handwriting of the said Humphrey, and were written by him; and that the indorsement of the name of the defendant thereon, is in the handwriting of the defendant, and was made by him for the purpose of having the said note discounted at the said bank for the object before expressed; and we find that the said note and indorsement are in the words and figures following:
'Alexandria, June 23, 1829.
'$1457.
'Sixty days after date, I promise to pay to Thomas Swann, Esq., or order, for value received, fourteen hundred dollars payable and negotiable at the Bank of Alexandria.
'HUMPH. PEAKE.
'Indorsed-Tho. Swann.