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Bond vs. The Central Bank of Georgia.

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ment, for a valuable consideration and in the due course of trade, said William F. Bond transferred said note to plaintiff by delivery, who then and there became, and still is, the lawful bearer thereof, and entitled to payment thereon. By reason whereof the defendant became liable, and in consideration thereof promised to pay plaintiff, the contents of said note, according to its tenor and effect. Yet defendant has not paid said note, but the same to pay fused, and still refuses to plaintiff's damages as aforesaid,” &c.

At May Term, 1845, a judgment was confessed by the defendant for eight thousand two hundred and ten dollars for the principal debt, with interest and costs of suit, reserving the right of appeal; which appeal was duly entered, and the cause set down for final trial in November Term, 1846, before the honourable Lott Warren, Judge of the Southwestern Circuit.

A special jury having been impaneled, and the writ read, the defendant excepted to the sufficiency thereof.

First. Because it did not allege any time when the note sued on was delivered to the plaintiff.

Second. There was no time stated when the super-se-assumpsit was made.

Third. The note declared on, exceeding in amount the sum of $2,500, and not, therefore, coming within the provisions of the original Central Bank charter, the plaintiff should have averred in his petition, and proven upon the trial, that the discount or purchase of said note was under the amended charter of 1829 or 1838.

Fourth. The note set forth exceeding the sum of $2,500, and no securities or indorsers alleged to be thereon, and being transferred by the payee thereof to the plaintiff, on the day it bears date, and payable two years thereafter, was not such a note as plaintiff, under its charter, or any of its amendments, was authorized to discount, purchase, or receive, in the due course of its business.

All of which demurrers were overruled by the Court. Whereupon the defendant, by his counsel, excepted.

The plaintiff then read the note and submitted the cause. The defendant proceeded to support his plea, which was, that at the time the note was given, the payee agreed with the maker, that he would receive in its discharge any note or execution which Joseph Bond might take up against him, and upon which the said Joseph Bond was liable for him; and that he, William F. Bond, gave his written acknowledgment to that effect. The evidence

Bond vs. The Central Bank of Georgia.

was then tendered and rejected by the Court, upon the ground that, if true, it could not affect the present plaintiff. To obviate this objection, the testimony of Alfred M. Nisbet, the Cashier of the Bank, was offered, who proved that Bond's note was taken in the payment of the antecedent indebtedness of Beall to the Bank; and it was contended that, therefore, the plaintiff was not a bona fide holder for ralue in legal contemplation, so as to exclude the previous equities subsisting between the original parties to the paper. The Court below ruled out the testimony, holding, that the extinguishment of a precedent debt, constituted a sufficient consideration for the transfer of a negotiable security. And to this decision defendant's counsel excepted.

The defendant introduced the Editor of the South-western Georgian, published at Albany, Baker County, Georgia, who swore that an advertisement was inserted in that gazette in the year 1842, by Joseph Bond, cautioning the public against trading for certain notes made by him to William F. Bond, as he was determined not to pay them. The witness further testified, that the paper containing this notice was sent reguarly that year to Doctor Tomlinson Fort, at Milledgeville, the place of his residence, who was at that time the President of the Central Bank. Another witness, James Bond, testified that he had seen and read the publication referred to, and that the note sued on was specified in the notice. The Court, upon application, withdrew this testimony from the jury, deciding that the paper itself must be produced. Whereupon the defendant, by his counsel, excepted.

The defendant tendered in evidence an instrument from W. F. Bond to Joseph Bond, wherein he agreed to receive from Joseph Bond any demands of his, for which the said Joseph was responsible, in satisfaction of his (Joseph Bond's) note, and the declarations of William F. Bond were attempted to be introduced to explain the discrepancy of a month between the dates of the note and the receipt, and to show that the note sued on, was in the possession of him, William F. Bond, when he gave this acknowledgment. The Court rejected this testimony, upon the ground, that the admissions of William F. Bond could not be given in evidence, he himself being a competent witness. Whereupon defendant, by his counsel, excepted.

This case has led to the discussion of many important questions.

The first class of exceptions is to the plaintiff's petition. It (1.)

Bond vs. The Central Bank of Georgia.

is certainly true that the writ must aver a time, when every material or traversable fact transpires. It must allege all the circumstances necessary for the support of the action, and contain a full, regular, and methodical statement of the injury which the plaintiff has sustained, and the time and place, with such precision, certainty and clearness, that the defendant, knowing what he is called upon to answer, may be able to plead a direct and unequivocal defence, and that the jury may be able to give a complete verdict upon the issue, and that the Court, consistently with the rules of law, may give a certain and distinct judgment upon the premises. Cowp. R. 682; 6 East R. 422; 5 Tr. R. 623. In an action, therefore, by the bearer of a promissory note, against the maker, the time should have been mentioned when the note was delivered. The real day need not be stated. It is usual to aver that it was transferred at its date. But, conceding the omission, is it not cured by the verdict or confession of judgment ?

[2.] After a verdict, courts will presume every thing consistent with law to support it. Kelden vs. Berins, Cooke R. 90. Omission to aver “possession,” in a declaration for trespass to the personalty, if necessary, is cured by verdict. Daniel vs. Holland, 4 J. J. Marshall, R. 18. The plaintiff, in his declaration on a policy of insurance, alleged that his store was consumed by fire; held, that though this was not a technical averment that he was the owner, yet it was sufficient after verdict. Lane vs. Maine M. I. Co. 3 Fairf. 44. So the omission to allege a value in the declaration, would be cured by verdict. Ib. A verdict cures all defective averments. Goodloe vs. Potts, Cooke R. 399. The power of a verdict to cure formal defects in pleading, should be liberally applied. Bank of Utica vs. Smedes, 3 Cowen R. 662. This defect being clearly amendable, we hold that the defendant came too late, after joining issue with the plaintiff on the merits, and confessing judgment for the debt.

[3.] And the same rules laid down in the foregoing references apply with equal force to the complaint, that there is no time stated when the super-se-assumpsit was made. In declarations upon notes payable to bearer, the usual practice has been, I know, to allege a promise directly to the plaintiff. We do not, however, believe that such allegations are necessary. Where the gist of the action is the promise, as where one upon sufficient consideration undertakes to pay the debt of another, there the decl.

ably be bad, unless the promise is averri

Wes

Bond 0s. The Central Bank of Georgia.

set forth show a legal liability on the part of the defendant to pay the note. Has not the plaintiff "plainly, fully, and distinctly set forth his cause of action ?" although he has omitted to repeat that the defendant, by reason of his liability, promised to pay, &c. Would the defendant or the Court have been aided in the discharge of their respective duties by such an averment? why then encumber the record with allegations which are nothing more than legal deductions from the facts stated?

By the 25th section of the original charter of the Central Bank, [4.] passed December 22d, 1828, it is enacted, that “the directors of said Bank shall distribute their loans as equally as practicable among the citizens of this State, having due regard to the population of the differerst counties; and no loan made by said Bank to any one person or body corporate, or any society or collection of persons whatsoever, shall exceed $2,500.” Prince Dig. 75.

And the 11th section declares that “the said Bank shall discount bills of exchange and notes on two or more good securities or indorsers.” Prince Dig. 73.

By the 1st section of the amended charter of 1829, it is provided that “nothing contained in the said act (of 1828) shall be so construed as to prevent or prohibit the directors of the said Bank from allowing any person indebted to the State in a sum exceeding $2,500, from renewing his or her, or their notes, bonds or other specialties, for the whole amount of his, her, or their debt, according to the provisions of the said act.” Prince Dig. 75.

And, by the supplemental act of 1838, Pamphlet, 46, the directors of the Central Bank are authorized to discount or purchase bills of exchange, or other paper, which, in their opinion, may be good, without reference to the limitation contained in the 25th section of the charter of said Bank, only so far as to authorize them to purchase exchange, for the purpose of remitting funds to pay interest on the States' bonds, or any other debt contracted abroad by authority of the Legislature.”

Now, it is argued that inasmuch as the note sued on, exceeds the sum of $2,500, and has neither indorser nor security, that it does not fall within the power conferred in the original charter, and that consequently the plaintiff should have averred that the discount or purchase of the note was under the amended charter of 1829 or 1838, and that, for want of such allegation, he cannot recover.

As a rule of pleading, it is a sound position that if a statute or a

Bond os. The Central Bank of Georgia.

private instrument contain in it, first, a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause something which would otherwise be included in it, a party relying on the general clause may set out that only, without noticing the separate and distinct clause which operates as an exception; but, if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it, together with the exception. And, if he were to state it as containing an absolute unconditional stipulation, without noticing the exception, it would be a variance. This is the rule laid down by Lord Tenterden, in the case of Varasour vs. Ormrod, 6 Barn. f. Cress. R. 430. But this is not the case here; this is no exception incorporated in the general clause, in the language of the authority, but distinct provisions contained in two amendatory statutes, conferring additional privileges upon the Bank; acts passed for the express purpose of extending the charter of the institution; and, like all other laws, it is made the duty of the Court to observe them without being pleaded.

[5.] Whether the Court below erred in rejecting the defendant's plea, and the evidence offered to support it, depends upon the settlement of the principle upon which that decision rested, namely, that every person is considered the bona fide holder, for value, of a negotiable promissory note; not only when he has advanced money or property for it, but also when he received it in payment of a pre-existing debt. It is admitted that the plaintiff took Joseph Bond's note from Samuel Beall, in satisfaction of certain claims held by the Bank against Beall, and it is proven that the transfer was made before the note fell due, and without notice of any objection to its payment on the part of the maker. Indeed it is in proof by John S. Thomas, one of the witnesses on the part of the defendant, that Joseph Bond, near one month after the maturity of the note, inquired of him, as the director of the Bank, whether he had not traded for his note; and upon being answered affirmatively, he, Bond, proposed to pay him two thousand dollars soon, and two thousand annually till the debt was discharged, to which witness assented; but Bond failed to comply with the agreement, although he several times afterwards promised to do so. It was likewise in evidence that some of the parties to Beall's paper which was surrendered, were entirely responsible. A grave question is here raised for our determination - is the Bank, upon this statement of facts, the bona fide holder of Bond's note ?

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