[Bank of the United States vs. Owens and others.] ration has taken more than at the rate of six per centum per annum upon a loan or discount contrary to and in violation of the ninth rule of the fundamental articles of the constitution of the corporation. 2. That the plea does make out such a case where the notes sued on, or the contract therein expressed to pay the plaintiffs five thousand dollars is void in law, so that no recovery can be had thereon in this suit. And 3. This Court being of opinion in the affirmative on the first and second points, renders it unnecessary to consider the third question; all of which is ordered and adjudged to be certified to the said circuit court.

THE PRESIDENT, Directors and COMPANY OF THE Bank of the UNITED STATES, PLAINTIFFS IN ERROR VS. THOMAS D. CARNEAL, DEFENDANT IN ERROR.

The evidence in the case was, that the day when the note became due, the bank being the holder thereof, and it being payable there, after the usual banking hours were over it was delivered to a notary by the officers of the bank, they informing him at the time that there were no funds there for the payment of the note. This was a sufficient proof of due demand of payment. [549]

When a note is payable at a bank, it is not necessary to make any personal de

mand upon the maker elsewhere. It is his duty to be at the bank within the usual hours of business to pay the same, and if he omits so to do, and a demand is there made of payment by the holder within those hours, and it is refused or neglected to be made, the holder is entitled to maintain his action for such dishonour. [549]

It is difficult to lay down any universal rule as to what is due diligence in respect to notice to indorsers. Many cases must be decided upon their own particular circumstances, however desirable it may be, when practicable, to lay down a general rule. [551]

When notice is sent by the mail, it is sufficient to direct it to the town where the party resides, if it is a post town; if it is not, then to the post office or post town nearest to his residence, if known. But the rule, as to the nearest post office, is not of universal application; for if the party is in the habit of receiving his letters at a more distant post office, or through a more circuitous route, and the fact is known to the person sending notice, notice sent by the latter mode will be good. And where the party is in the habit of receiving his letters at various post offices, to suit his own convenience or business, it may be sufficient to send it to either. [551] A suggestion was made at the bar, that the letter to the indorser, stating the demand and dishonour of the note, is not sufficient, unless the party sending it also informs the indorser that he is looked to for payment. But where such notice is sent by the holder, or by his order, it necessarily implies such a responsibility over. [552]

ERROR to the circuit court of Ohio.

This suit was originally brought against William Steele, William Lytle, and Thomas D. Carneal. The plaintiffs counted in assumpsit for money lent and advanced, under a provision of the statute of the state of Ohio, authorising a joint suit against all the parties to a promissory note.

The original process was served upon William Steele and William Lytle. As to Thomas D. Carneal, the marshal of

[Bank of the United States vs. Carneal.]

the district of Ohio returned "not found;" and this return being suggested of record, the plaintiffs, at the September term of the circuit court for the year 1823, proceeded to judgment against Steele and Lytle.

In May 1824, the plaintiffs, in pursuance of another statute of the state of Ohio, sued out of the clerk's office of the circuit court a writ of scire facias against Thomas D. Carneal, (as to whom the marshal of the district had previously returned "not found,") the object of which writ was to call upon him to show cause why he should not be made a party to the judgment against Steele and Lytle, and why execution should not issue against him agreeably to the provisions of the statute.

This writ having been served upon the defendant, a rule was taken against him for a plea. At the September rules 1824, the defendant's default was entered, and judgment "nisi." At the January term 1825, this default was set aside, and the defendant filed the plea of non assumpsit; upon which issue was joined.

The cause was regularly continued upon the docket until the July term 1827; at which term the defendant's attorney filed a further plea.

"And the said Thomas D. Carneal, by the leave of the court, first had and obtained for further plea in this behalf, defends the wrong and injury, when, &c., and says, That the said promise in the said declaration, in the original cause supposed, was made by the said Carneal as co-indorser with William Lytle, upon a promissory note, made and executed by the said William Steele, the said Carneal and Lytle being indorsers, as securities for the said William Steele; and, after the making of the said promise, and after the commencement of this suit, to wit, on the 17th day of December 1824, in consideration that the said Lytle had transferred to the plaintiffs a large amount of real estate, in payment and satisfaction of the debts of the said William Lytle to the said plaintiffs, including the debt due the plaintiff's upon the indorsement aforesaid, and had given his notes for the payment of a large sum of money, to wit, the sum of forty thousand dollars, upon account of and in satisfaction of his said

[Bank of the United States vs. Carneal.]

liabilities to the plaintiffs, including the indorsement aforesaid the said plaintiffs agreed with the said William Lytle that they would accept and receive the real estate so conveyed, and the notes so made and delivered, in satisfaction of the said debt. due from the said William Steele, upon which the said Carneal, with the said William Lytle, were indorsers and securities as aforesaid; and did then and there accept and receive the same in satisfaction of said debt; and this the said Carneal is ready to verify: wherefore he prays judgment, if the said plaintiffs their action ought further to have or maintain against him."

At the December term 1827, the plaintiffs filed their replication to the above plea, in the following words: "And the said plaintiffs, by Daniel J. Caswell, their attorney, as to the plea of the defendant, by him last pleaded, to the further maintenance of the said action, say, that for any thing in the said plea set forth, they ought not to be barred from further having and maintaining their said action, because, protesting that the said William Lytle did not transfer to the said plaintiffs the real estate in the said plea set forth, nor give his notes for the sum of money in the said plea set forth; for replication to the said plea, they say that the said plaintiff's did not accept the same in satisfaction of the sum of money due the said plaintiffs, as set forth in their said declaration; and this they pray may be inquired of by the country, and the defendant doth the like, &c.

The cause was tried at the July term 1828, and a verdict and judgment rendered for the defendant.

The counsel for the plaintiffs tendered their bill of exceptions, and prosecuted this writ of error.

The bill of exceptions sent up with the record, contains the whole of the testimony given on the trial. The facts of the case, as they were understood and considered by the Court, are stated in the opinion of the Court delivered by Mr Justice Story.

On the trial in the circuit court of Ohio, after the evidence was closed, the defendant's counsel moved the court to instruct the jury as in case of a non-suit, " upon the ground that the evidence adduced by the plaintiffs was not sufficient in VOL. II.-3 T

[Bank of the United States vs. Carneal.]

law to charge the defendant as indorser of the note aforesaid; and the court, upon the motion aforesaid, decided that the evidence in writing adduced by the plaintiff's was insufficient in law to charge the defendant and render him liable as indorser of the note aforesaid, and so charged the jury: to which opinion of the court, and charge to the jury, the plaintiffs by their counsel except, and pray the court that this, their bill of exceptions, may be signed, sealed, and made a part of the record; which is hereby ordered."

The plaintiffs, by their counsel, moved the court to charge the jury, that, under the present state of the pleadings in the cause, it was not necessary for the plaintiffs to prove that they gave notice to the defendant of the non-payment of the said note at the time the same became due and payable, in order to charge the said defendant: which instruction the court refused to give the said jury; and on the contrary, charged the said jury that it was incumbent upon the plaintiffs to prove such notice. To which opinion and charge of the court, the plaintiffs, by their counsel, excepted, and prayed that this, their bill of exceptions may also be signed, sealed, and made a part of the record. All which was ordered by the court.

The case was argued by Mr Caswell and Mr Sergeant for the plaintiffs in error; and by Mr Benham for the defendant.

The counsel for the plaintiffs contended:

1..That the Court erred in deciding that it was incumbent upon the plaintiffs to prove that due and legal notice was given to the defendant of the non-payment of the note set forth in the record. In order to sustain this position, they relied upon the fact, that, after the issue of non-assumpsit was joined by the parties, the defendant, by leave of the court, filed a plea of accord and satisfaction pending the writ, upon which issue was joined. This plea, it is contended, was a waiver of the former issue.

2. That the proof of notice was sufficient to charge the defendant with the payment of the note: and, consequently, that the court erred in charging the jury as in case of non

suit..