Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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" The Bank of the United States will pay one thousand dollars
to the bearer. Philadelphia, January 1, 1840.
For J. COWPERTHWAIT, Cashier.

S. MASON. For J. DUNLAP, President.

G. W. FAIRMAN."

Bank notes for $100, and less amount.

" The Bank of the United States promises to pay one hundred
dollars to the bearer. Philadelphia, March 1, 1837.
For S. JAUDON, Cashier. For N. BIDDLE, President.
S. MASON. G. W. FAIRMAN."

Post note payable to bearer.

"Philadelphia, June 1, 1837.

" Ten days after date the Bank of the United States will pay
twenty dollars to John Ross or bearer.

For S. JAUDON, Cashier. For K BIDDLE, President."

S. MASON. G. W. FAIRMAN."

Or thus :

" Ten days after date I promise to pay to John Ross or bearer,
one hundred dollars, value received, for the President, Directors,
and Company of the Bank of the United States.
J. COWPERTHWAIT, Cashier. N. BIDDLE, President.

September 1, 1838."

a denial in the affidavit of defence. The principle being, that everything
essential to warrant a judgment on such note, &c., under the act, that is not
denied by the affidavit of defence, is considered confessed, otherwise the act
would be nugatory.

The statements referred to in the above syllabus, " cannot be recognised
by the court as parts of the instruments on which judgment is given,"
[but Jones, J., suggests *608, that facts alleged in a declaration, if filed
might be considered to be confessed, if not denied in the affidavit], these
statements being entirely dissimilar to statements abridging the demand.

The court refused an application of the defendant for an order on the
plaintiff, before entering judgment, to deposit the notes in a place of safe
custody, under the direction of the court. [Affirmed, Bank v. Thayer, 2
W. & S. 443, suggesting a control of the execution, so as to protect the
defendant.] |j



APPENDIX. 586

[Hall r. Bank of the United States.]

Post note payable to order.
$2000. Philadelphia, June 15th, 1839.

Twelve months after date the Bank of the United States promises
to pay S. Mason, or order, two thousand dollars.
J. COWPERTHWAIT, Cashier.

(Signed) T. DUNLAP, President.

(Endorsed) S. MASON."

In the case of Hall v. The Bank of the U. States, the plaintiff
filed in the prothonotary's office a writing in the following words :

" Samuel Hall t>. The Bank of the United States, District Court,
March term, 1840, No. 1574. The within copies of eighteen notes
of $1000 each, and three copies of notes of $100 each, amounting
^altogether to the sum of $18,300, are copies of the several
notes of the defendants, upon which the above action is
founded ; all of which were presented and protested for non-pay-
ment on the 30th day April 1840, payment having been refused at
the bank."

Annexed were copies of twenty-one bank notes of the respective
denominations above mentioned.

In the case of Newton, the plaintiff filed in the prothonotary's
office a writing, signed by the plaintiffs attorney, and entitled in
the cause in these words :

" The within copies of ten notes of the defendants, marked, to
wit: nine of $1000 each, and one of $500, amounting altogether
to the sum of $9500, which were presented on the 6th of January
1840, at the bank, and payment refused, and said refusal marked
upon said notes by A. Lardner, Esq., acting cashier, are the copies
of the several notes upon which the above action is founded."

The copies annexed to and referred to in this writing, were of
notes of the respective amounts therein mentioned, similar in form
to the note for $1000, of which a copy is inserted above ; except
that across the face of each note, as set forth in the copy, were
written the words, "Marked, Jan. 6, '40, A. L., A. Cash."

In the case of Eldridge, the plaintiff filed in the prothonotary's
office, a copy of nine post notes of the defendants, each for $100,
payable to bearer ten days after date.

In the suits brought by J. E. Thayer, and N. Thayer, Jr., which
were fourteen in number, copies of post notes and bank notes were
filed. In some of the cases it was alleged by writing filed that the
notes were presented at the banking house at a certain day, and
were refused payment, and duly protested.

In the case of Rogers, the plaintiff filed a writing signed by his
attorney, and entitled in the cause in these words :



587 APPENDIX.

[Hall v. Bank of the United States.]

"This action was instituted to recover the amount of certain bank
notes of the defendants, to wit, $10,800.

Interest on $10,800, at the rate of 12 per cent, a year, from the
3d day of March, A. D. 1840, until the same is paid.

Costs of protest of the said notes, $41.12.

Interest on $41.12, from March 3, 1840.

The said notes were, on the said 3d of March 1840, held by, and
the property of the plaintiff, and have since remained in his posses-
sion, and continued to be his property. Copies of the protest of
the same, the notary's receipt for his fees, and the bank notes afore-
said are hereto annexed."

Annexed was an abstract of one hundred and eleven bank notes,

*ron-i *one hundred and seven for $100 each, payable to bearer,

J on demand; two of $20 each ; one of $10, and one of $50

at the foot of which was the copy of a notary's protest and

receipt.

In the case of Lockhart, the plaintiff filed a writing signed by
his attorney, and entitled in the cause in the following words :

" Copy of promissory notes, alias bank notes, on which this suit
or action is brought."

(Then follows a copy of six bank notes payable to bearer, each
for $1000.)

" N. B. The above-mentioned and copied notes were duly pre-
sented to and at the said bank during banking hours on the 25th
day of January 1840, and demand of payment thereof was then and
there made of the said bank, and of the proper officer thereof, and
the said bank and its proper officer did then and there neglect
and refuse to pay each and every of the said notes, and the plaintiff
(the holder thereof) doth therefore claim in addition to the amount
specified in the said notes, interest thereon at the rate of twelve per
cent, a year from the said 25th of January 1840, until the said notes
or a judgment which may be entered thereon in this suit, shall be
fully paid and satisfied."

In the case of Brown, the plaintiffs filed a writing purporting to
be a copy of four post notes, two of them for $3000 each, and the
other two for $2000 each each note dated the 14th of June 1839,
and payable on the 18th of July 1840, to J. Summerville, cashier,
or order, and by him endorsed to the order of the plaintiff, and
another, by whom they were endorsed in blank.

At the foot of which copies was written :

" The foregoing are copies of the notes of the defendants, upon
which this action is founded."

Affidavits of defence were filed in all these cases.

The following is a copy of the affidavit in cases which were in
whole or in part on bank notes of the forms above stated :

" Alexander Lardner, acting cashier of the bank of the United



APPENDIX. 588

[Hall v. Bank of the United States.]

States, being duly sworn, says that defendants have a defence to
the plaintiffs demand for interest ; the nature and character of
which are, that interest is in no case chargeable against them at a
higher rate than six per cent, per annum ; nor at that rate, except
from the time when the paper sued on, according to what appears
upon its face, became due and payable, and that if any extrinsic
matter be relied on therefor, the same, if true, should be duly
proved hereafter, and is not to be assumed upon any application
for judgment for want of an affidavit of defence. Also, that the
fees and charges for notarial protests, if claimed, are not recover-
able. That *upon their notes payable to bearer on demand, r*coq
there can be no judgment against the defendants for want of *
an affidavit of defence for more than the principal, without any
interest for the time before suit brought. In regard to all the notes
sued on, they object to judgment being entered for any amount
without the production by plaintiff of the said notes at the time of
moving therefor, and the deposit of them in a place of safe custody
under the direction of the court."

The following is a copy of the affidavit in certain of the cases in
which the plaintiff's claim was exclusively on post notes :

" Alexander Lardner, cashier of defendants, on his oath says,
that they have a defence to the demand of the plaintiff, if he should
make any demand for interest beyond the rate of six per cent, per
annum, in this, that they are not liable for any such excess of
interest beyond six per cent., and they suggest, that the case is not
for any purpose within the provisions of the act of the legislature
establishing this court, or supplements thereto, on the subject of
judgments for want of an affidavit of defence, because the operation
of said acts as regards the notes of the defendants, is repealed or
suspended until the 15th day of January next."

The following affidavit was made in certain other cases, where the
plaintiff's claim was exclusively on post notes :

' Alexander Lardner, second assistant cashier of the Bank of the
United States, and their agent duly authorized in this behalf, being
duly sworn, says that the defendants have a defence to the plaintiffs
demand for interest and charges of protest (if said charges be claimed)
on the notes on which this suit is brought; the nature and character
of which are that interest is not by law chargeable against them at
any higher rate than six per cent, per annum, nor at that rate
except from the time when said notes according to their tenor and
effect became due and payable ; and that said charges of protest are
not recoverable or rightly incurred. In regard to all the notes sued
on, they object to judgment being entered for any amount without
the production of said notes by plaintiff at the time of moving there-
for, and the deposit of them in a place of safe custody under the
direction of the court."



589 APPENDIX.

[Hall . Bank of the United States.]

In the case of Rogers v. The Bank of the United States, the fol-
lowing affidavit was filed :

" Alexander Lardner, second assistant cashier of the Bank of the
United States and their agent duly authorized in this behalf, being
duly sworn, says, that the defendants have a defence to plaintiff's
demand for interest and for charges of notarial protest (if any such
charges be claimed) ; the nature and character of which defence as
to the interest, is that interest is in no case chargeable against the
defendants at a higher rate than six per cent, per annum : that upon
*"Q01 *^ e notes 8ue ^ on ? there cannot in any event be a judgment
-1 against the defendants for want of an affidavit of defence for
more than the principal of said note, without any interest for the
time before suit brought, and that if any extrinsic matter be relied
on in support of the charge of interest from an earlier day, the
same, if true, should be duly proved hereafter ; and it is not to
be assumed upon any application for judgment for want of an affi-
davit of defence. In regard to the charges for notarial protests,
if claimed, the nature and character of the defence are, that the
same are not by law recoverable. Defendants object to judg-
ments being entered for any amount without the production by
plaintiff of the said notes at the time of moving therefor, and the
deposit of them in a place of safe custody under the direction of the
court."

Rules were obtained in the several cases, to show cause why judg-
ment should not be entered, for want of a sufficient .affidavit of
defence ; which were argued by Mr. Troubat, Mr. Earle, Mr. Dex-
ter (of Massachusetts) and Mr. Freeman, for the several plaintiffs,
and by Mr. Cadwalader, Mr. Meredith and Mr. Williams for the
defendant.

On this day, the judges delivered their opinions seriatim.

PETTIT, President. In each of these cases, the plaintiff has filed,
according to the act of assembly of 1835, copies of certain notes
issued by the Bank of the United States ; many of them payable
to bearer generally, and therefore in law on demand : and others,
called post notes, payable to order or bearer at designated periods.
The defendants having, in each case, filed an affidavit of defence to
a part of the plaintiff's demand, the plaintiff has obtained a rule to
show cause why judgment should not be entered for want of a
sufficient affidavit.

The first question to be disposed of is that which is presented by
the resolution of the legislature of Pennsylvania., passed on the 3d
day of April 1840, entitled, " Resolution providing for the resump-
tion of specie payments by the banks, and for other purposes."

It is urged on behalf of the defendants, that this law strips the
court of all authority to give a judgment of any kind, or for any



APPENDIX. 591

[Hall v. Bank of the United States.]

amount, on the present application, on the ground that we are pro-
ceeding otherwise than according to the common law in force in this
commonwealth.

The clause in question is in these words :

"Resolved, That the several incorporated banks of this com-
monwealth are hereby required, on, from and after the 15th day
January, in the year of our Lord, 1841, to pay on demand all their
notes, bills, deposits and other liabilities in gold and silver coin,
except such as may have been made and created under a special
agreement, under the penalty of the forfeitures of the charters, to
be declared *forfeited as hereinafter provided, of any and r*cq-i
all banks refusing so to do ; Provided, That any person or ^
persons, from the passage of these resolutions until the said above-
mentioned day, may proceed to recover and collect in gold and silver
coin, the liabilities of and the penalties recoverable from any of
said banks, according to the common law in force in this common-
wealth, and not otherwise."

The obvious and prominent object of this particular enactment,
construed in its connection with the whole law, is to relieve each of
the banks of the state from the operation of the pre-existing laws
relative to a forfeiture of its charter. The 19th article of the 3d
section of the act of the 25th March 1824, (Purdon's Dig. 110,)
entitled, "An act to recharter certain banks," contains the regula-
tion for the banks generally ; and the 7th article of the 4th section
of the act of 18th February 1836, (Pamphlet Laws 39,) makes a
similar provision applicable to the Bank of the United States. The
proceeding by application to a judge, and by proclamation of the
governor is repealed, but the right of individuals " to recover and
collect in gold and silver coin, the liabilities of and the penalties
recoverable from any of the banks," is expressly affirmed. This
right, however, it is declared, must be pursued according to the
common law in force in this commonwealth, and not otherwise.

The common law in force in this commonwealth can only be
understood to mean the principles of the common law as adminis-
tered in the common-law courts. To hold those courts to be limited
rigidly to the forms of the old English common law, would be to
deny them, in many cases, the power of proceeding at all, as no
common-law forms are to be found in force here, unless modified by
modern practices and our own statutes. The resolution of the
legislature makes no discrimination by which we can adopt some
and reject others of those qualifications. Our system generally is
based on common-law principles, but our procceedings for the
recovery of money are common-law proceedings modified through-
out by statutory enactments. Indeed, the act of 21st March 1806,
entitled, "An act to regulate arbitrations," contains provisions which
have entirely changed the forms of proceeding in actions of debt,



591 APPENDIX.

[Hall v. Bank of the United States. ]

assumpsit and ejectment. (1 Rawle 290.) It would be difficult to
draw the line between what is purely founded on the common law,
and what rests entirely on legislative authority. Nor would it
comport with the respect which is due to the legislature, to ascribe
to them an intention to assert for individuals a right to recover in
gold and silver coin any liability of a bank, and at the same time
to assume that, by an exclusive reference to a mode of proceeding
which has no existence, they designed to deny to such individuals
the usual and indeed only available remedies known to the laws.
No reason of justice, of sound policy, or of good faith, can be
assigned for the suggestion, that our law makers contemplated a
retrospective interference of this kind, with well established reme-
*cQ9-i dies for the enforcement *of any of the legal rights of indi-
J viduals against banking institutions. That such a purpose
will ever be entertained, is not to be predicated of the general
assembly of a commonwealth that is justly proud of the security, in
regards to rights of property, which every man feels in the stability
of her laws. In my judgment, full effect can be given to the reso-
lutions of the 3d April 1840, without impairing the authority of
this court to allow the pursuit, by any individuals of the usual
remedies for the recovery of the liabilities of the banks.

The next inquiry is, what judgment will the court give ? The
plaintiff in each suit claims on promissory notes. By the estab-
lished practice, under the act of 1835, he is entitled to a judgment
for the amount of the instruments, with lawful interest from the
time when the paper, according to what appears on its face, became
due and payable. In relation to promissory notes and bills of
exchange, we have assumed that to be established, as to demand
and notice, which is essential to enable the plaintiff to recover,
unless the defendant makes such a denial in his affidavit of defence
as will render a jury trial necessary. This is authorized by the
act of assembly, upon a well-founded general presumption, that,
in regard to negotiable instruments in constant use, the ordinary
course of business has been pursued by a plaintiff; and it cannot
be deemed oppressive to the defendant, since any omission of the
plaintiff .need only be asserted in an affidavit, to put the plaintiff
on full proof before a jury.

As several classes of notes are embraced in these various suits,
it is proper to notice their different characters, the power of the
court being plainly more restricted in reference to some than in
reference to others.

I will first advert to the instruments which have been treated as
payable on demand, comprehending all those in which no day sub-
sequent to the date is specified for payment. In the ordinary case
of promissory notes, the legal interest of 6 per cent, is allowed by
the court ; and as to notes payable immediately, the entry of the






APPENDIX. 592

[Hall v. Bank of the United States.]

suit generally fixes the day of demand, the date of such entry being
the only point of time which the court can recognise without proof
before a jury. We are then to inquire whether, in any case, any
other rate of interest is fixed by law for bank notes. The act of
22d March 1817, entitled, " An act relative to suits brought by or
against corporations" (6 Smith 438), provides, "that no suit shall
be sustained on any bank note or notes payable to bearer or order
on demand, unless demands shall have been first made for payment
thereof at their banking-house, office or treasury ; and in case of
non-payment, interest shall be recoverable on the same from the
time of making such demand." In the spirit of the settled prac-
tice of the court, we are then to assume, in the absence of any
denial of the fact, that the demand at the banking-house, without
which the suit could not be sustained, was made ; and as the
bringing of the suit furnishes the *only evidence which the r*cqq
court can notice of the time of the demand, the date of the "-
entry of the action is to be regarded as the day of the demand.
This brings us to the special provision of the charter of the Bank
of the United States. The 6th article of the 4th section of the
act containing the charter, passed on the 18th February 1836,
(Pamph. L. 39,) enacts, that " if the bank shall neglect or refuse
to pay its notes or bills, or moneys deposited, when due, on demand
made at the bank during banking hours, the person or persons
entitled to the same shall receive interest thereon, at the rate of
twelve per cent, per year, until payment be made."

Regarding the words of the act of 1817, "demand at the bank-
ing-house," as substantially the same as the words of the act of
1836, "demand at the bank during banking-hours," inasmuch as
there could be no regular demand at the banking-house except
during banking hours, the case is distinctly presented, in each
action, of a claim founded on notes payable on demand, the pay-
ment of which has been refused on demand duly made, of which
demand as made on the day of the entry of action, the court can
take notice without the aid of a jury. The legal interest in such
a case being twelve per cent, per annum, the court can give, and
ought to give, judgment for the amount of the notes with interest
at that rate, computed from the commencement of the suit.

I now come to the notes, whether payable to order or bearer,
which on their face appear to be payable at a day subsequent to
their date. In relation to them, the court on this application are
obliged to recognise different rules, growing out of different legis-
lative provisions. To justify the award of interest at the rate of
12 per cent, a year, the court must be able to assume, as to each
note, a demand at the banking-house. These notes are not within
the act of 1817, requiring a demand before a suit brought, as the
act embraces only notes payable on demand; and thus by oar



593 APPENDIX.

[Hall 0. Bank of the United States.]

settled practice, we are not at liberty to assume, in regard to these
notes, any demand except that which is implied in the entry of the
action, that alone being essential to the sustaining of the suit. As
to this clause of instruments, then, all that the court have authority
to do upon the present application, is to give judgment for the
amount of the notes, with interest at the usual rate of 6 per
cent., computed from the days at which the notes respectively
became due.

But on the notes payable on demand, the plaintiffs in different
actions claim interest at the rate of 12 per cent, a year, from
periods prior to the commencement of the suits ; and rely on
certain statements filed by them averring the particular days.
Some of these papers merely state aggregate amounts as presented
for payment on designated days, but omit to distinguish the partic-
ular notes. But waiving this objection, the papers thus filed can-
not be recognised by the court as parts of the instruments on which
judgment is given. They are altogether independent and ex-
trinsic: nor do the statements *received in suits on
ground-rent deeds afford any precedent. In those suits, the
averments are intended to restrain, not to enlarge the plaintiff's
demand. If, however, the plaintiff, in any instance, declines
taking the only judgment which the court, under the act of assem-
bly of 1885, have the power to render, he is of course at full liberty
to go before a jury, and there, on legal proof of the fact of demand
and refusal at the bank during banking hours, on a day prior to the
commencement of the action, recover interest at the rate of 12 per
cent, a year from that day. It appears, however, that in some
cases suits were actually brought on the day asserted to be the day
of the demand. 1

It may be added, that if any plaintiff still insists on his claim
for interest at the rate of 12 per cent, on notes payable at a day
subsequent to their date, he may also go before a jury, and there,
on proof of the fact, which the court have no legal means with-
out a jury of ascertaining, namely, of a demand and refusal at
the bank during banking hours, recover the whole amount of his
demand.

The suggestion that a judgment could be given generally, leav-
ing the amount to be ascertained under a writ of inquiry, had
not been overlooked. Even if the act of 1835 contemplated a writ
of inquiry as necessary in any case, yet the want of a declaration,
which is indispensable to the proper execntion of such a writ, could
hardly be deemed to be supplied by the statement filed by the plain-
tiff. Besides, the matter to be proved, namely, the day of de-
mand and refusal, could not, if disputed, be shown except on a trial



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 67 of 75)