IN error to the Circuit Court of the United States, for the county of Washington, in the District of Columbia.
The Bank of the Metropolis, on the 27th of September, 1837, instituted an action of assumpsit against Thomas P. Moore, the plaintiff in error, on a promissory note dated the 16th day of February, 1837, payable sixty days after date; by which the defendant, Thomas P. Moore, P. H. Pope, and Richard M. Johnson, by George Thomas, their attorney at Washington, jointly and severally promised to pay to the plaintiffs the sum of five thousand dollars current money of the United States, for value received.
The declaration also contained a count on the same note, stating it to be the note of Thomas P. Moore, to the plaintiffs, and also a count for the amount of the same note as so much money paid, laid out and expended, at the special instance and request of the defendant, and for the same sum had and received by the defendant to the use of the plaintiffs.
The defendant pleaded non assumpsit, and the cause was tried before a jury in November 1838, and a verdict and judgment rendered in favour of the plaintiffs. The defendant filed two bills of exceptions, to the ruling of the Court on matters presented on the trial; and he afterwards prosecuted this writ of error.
The first bill of exceptions stated:
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, 1834, the said defendant with Richard M. Johnson and P. H. Pope, executed their joint and several note, and on the same day by their checks, drew from the said plaintiffs the proceeds thereof, which had been carried to their credit; 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, 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 the Bank of Metropolis, a power of attorney, 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; 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.
The second bill of exceptions stated: