THOMAS P. MOORE, PLAINTIFF IN ERROR,
vs.
THE BANK OF THE METROPOLIS, DEFENDANTS IN ERROR.
Supreme Court of United States.
*306 The case was argued by Mr. Brent, Jun., for the plaintiff in error; and by Coxe for the defendant.
*307 Mr. Justice THOMPSON delivered the opinion of the Court:
This case comes up on a writ of error to the Circuit Court of the United States, for the District of Columbia, in the county of Washington.
It is an action of assumpsit, upon a promissory note, purporting to have been made by the defendant, and Richard M. Johnson, and P.H. Pope, by their attorney, George Thomas; the note, bearing date the 16th of February, 1837; by which the makers, jointly and severally, promise to pay to the President and Directors of the Bank of the Metropolis or order, sixty days after date, the sum of five thousand dollars.
The declaration also contains the common money counts: and upon the trial of the cause, the plaintiffs offered in evidence, to sustain the action, sundry matters set out in the following bill of exceptions:
FIRST BILL OF EXCEPTIONS.
On the trial of this cause the plaintiffs, to sustain the action on their part, proved, by a competent witness, that on the 27th March, *308 1834, the said defendant, with Richard M. Johnson and P.H. Pope, executed their joint and several note as follows:
"$5000. "Washington City, March 27th, 1334.`Four months after date we jointly and severally promise to pay to the President, Directors, and Co. of the Bank of the Metropolis, or order, five thousand dollars, without defalcation, value received, payable at said bank.
"RH. M. JOHNSON, "T.P. MOORE, "P.H. POPE."And on the same day, by their checks, drew from the said plaintiffs the proceeds thereof, which had been carried to their credit:
"Washington City, March 27th, 1834."Cashier of the Bank of the Metropolis, pay to bearer forty-eight hundred and ninety-six 67-100 dollars.
"P.H. POPE, "RH. M. JOHNSON, "T.P. MOORE."That said note was not paid at maturity, but lay over unpaid until the 30th January, 1836, when it was cancelled; that on the 30th day of January, 1836, the said parties executed and delivered to the said plaintiffs their promissory note, as follows:
Six months after date we jointly and severally promise to pay to the President and Directors of the Bank of the Metropolis, or order, five thousand dollars, without defalcation, value received, this 30th day of January, 1836.
"RH. M. JOHNSON, $5000. "P.H. POPE, "T.P. MOORE."Cr. of R.M. Johnson, and others, to renew a note of same amount."
Which was discounted by said plaintiffs, and the proceeds thereof carried to the credit of said drawers, and the interest in arrears paid. That on the 29th of February, 1836, the said parties executed and delivered to George Thomas, at that time cashier of said Bank of the Metropolis, a power of attorney, in the words and figures following, that is to say:
"Whereas we have a joint and several note of hand discounted in the Bank of the Metropolis Now
"Know all men by these presents, that we, Richard M. Johnson, Thomas P. Moore, and P.H. Pope, all of the state of Kentucky, do hereby nominate, constitute, and appoint George Thomas, of the city of Washington, our true and lawful attorney in fact, and by these presents do authorize and empower him, for us, and in our names, to sign our joint note to the President and Directors of the *309 Bank of the Metropolis, for five thousand dollars, for our accommodation, and the same to renew, from time to time, as it may become due, for the whole or any part thereof Hereby ratifying and confirming all and every the act and acts of our said attorney, in and about the premises, so long as the bank shall continue the accommodation to us. In witness whereof, we have hereunto set our hands and seals, at the city of Washington, the 29th day of February, 1836.
"DISTRICT OF COLUMBIA, Washington County, to wit:
"On this 29th day of February, in the year eighteen hundred and thirty-six, personally appeared Richard M. Johnson, P.H. Pope, and T.P. Moore, before me, the subscriber, a justice of the peace in and for the county aforesaid, and acknowledged the above power of attorney to be their act and deed, for the purposes mentioned therein.
"SAM'L STETTINIUS, J. Peace."Which said power of attorney was given for the single purpose of acting for said parties in relation to said last mentioned note and the renewal thereof; and that the said George Thomas, professing to act by virtue of said power of attorney, under said power of attorney made and executed the note mentioned and described in the declaration, to wit:
"$5000. "Washington, 16th Feb. 1837."Sixty days after date, we jointly and severally promise to pay the President and Directors of the Bank of the Metropolis, or order, at the said bank, five thousand dollars, for value received.
"RICHARD M. JOHNSON, THOS. P. MOORE, P.H. POPE, "By their attorney, GEO. THOMAS."That the same was then discounted by said bank, the proceeds carried to the credit of the said drawers, and the arrears of interest upon the former and last preceding note, together with the discount of this note paid and credited on said account, and the said note dated 30th January, 1836, was cancelled, but witness does not recollect by what person said interest or discount was paid. To the admissibility of which notes, or any of them, or any matter above stated in evidence, the defendant objects; but the Court overruled the objection, and permitted all of said notes, and the proceedings in regard to them and the matters stated, to be given in evidence to the jury. To which opinion of the Court the defendant excepted.
There was another bill of exceptions taken at the trial, growing out of the refusal of the Court to give certain instructions prayed; touching the alleged usury in the note, by reason of the interest having been taken in advance on discounting the note. But it is unnecessary to notice these instructions. For all exceptions on this account were abandoned at the argument, as raising a question too well settled to be now drawn into discussion. The last prayer contained *310 in this bill of exception, which raised the question whether the power of attorney given to George Thomas authorized him to sign the note upon which this suit is brought, will be noticed under the first bill of exceptions, where the power is set out at length, so far as is necessary for the decision of this case; so that the second bill of exceptions may be laid entirely out of view.
The general questions arising under the first bill of exceptions are, whether the evidence offered was admissible, and if so, whether it was sufficient to maintain the action, either upon the count on the note signed by George Thomas, or on the money counts. The exception was taken after the evidence had been given (without objection) to the whole matter stated in the exception; and if any part of it was admissible, the objection was properly overruled. It is the duty of a party, taking exception to the admissibility of evidence, to point out the part excepted to, when the evidence consists of a number of particulars, so that the attention of the Court may be drawn to the particular objection. The objection here taken, was in the broadest possible manner to all the matter stated in the bill of exceptions. That some part of this evidence was admissible under the money counts, cannot be doubted. One of the notes to which the objection extended, is the one upon which the first count in the declaration is founded. And whether that was admissible or not, depends upon the power of attorney, to George Thomas, set out in the exception, under and by virtue of which he made the note in question.
That power, it will be seen, authorized him to sign a joint note; whereas, the one he gave was a joint and several note.
If it was necessary to decide this question in order to maintain the action, it may well be questioned whether the power did not authorize the making a joint and several note. There is some diversity of opinion on the Bench upon that point. The object of the power, as appears upon its face clearly was to make a note as the renewal of a joint and several note, which the parties had running in the bank. It recites as follows: "Whereas, we have a joint and several note of hand discounted in the Bank of the Metropolis," and then proceeds to empower George Thomas to renew the same from time to time as it fell due. But there may have existed some reason why they preferred changing the form, by giving a joint instead of a joint and several note. The power is certainly not strictly pursued, though probably according to the intention of the parties. But as the cause does not turn entirely on this point, we pass it by. The action is clearly maintainable on the money counts. If the note was properly given under the power, it was admissible under the first count, or under the money counts. If signed by the attorney without sufficient authority, it was void, and to be laid out of view, and the cause stands upon the other evidence given at the trial; which shows the original loan by the bank, to Richard M. Johnson, T.P. Moore, and P.H. Pope, upon their note, dated 27th March, 1834, by which they jointly and severally promised to pay the bank five thousand *311 dollars, in four months after date. By their joint check of the same date, they drew out of the bank $4896 67, the proceeds of the note, deducting the discount. That note not being paid, another joint and several note was given by them, bearing date the 30th of January, 1836, for $5000, payable six months after date; which was discounted by the bank, and the proceeds carried to the credit of the makers, deducting the discount and arrears of interest. And the power of attorney was afterwards given to George Thomas, authorizing him to make another note, as a renewal of the one last mentioned; and under which authority, he made the note now in question, which was discounted, and the proceeds carried to the credit of the makers; and the arrears of interest on the note then in bank, and the discount upon the note now in question, was paid, and credited in account with the makers, and the note of 30th of January, 1836, was cancelled. This evidence is amply sufficient to show, $5000 was originally advanced to the makers of these notes, and that upon the several renewals, they have been credited with the proceeds, and all the notes given up and cancelled, without payment in any way, except by the note made by George Thomas, under the power of attorney; and if that note is void, the bank is without a remedy, except upon the money counts, to recover the money paid upon the check of P.H. Pope, R.M. Johnson, and T.P. Moore. This money has gone to the joint use of the three, who might all have been joined in the action. But if any objection could be made to the suit against Moore alone, by reason of the non-joinder of the other two, it should have been pleaded in abatement, and cannot be taken advantage of upon the general issue. This is a well settled rule in pleading; and is fully recognised by this Court, in the case of Barry vs. Foyles, 1 Peters, 316.
The judgment of the Court below is accordingly affirmed with costs.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said Circuit Court, in this cause, be, and the same is hereby, affirmed, with costs and damages at the rate of six per centum per annum.