In error to the circuit court of the United States for the district of Ohio.
The defendant in error instituted, in the circuit court, an action of debt on the following obligation, executed by the plaintiff in error, and others.
'Know all men by these presents, we, Peter Yarnall & Co., Samuel Sprigg, Richard Symms, Alexander Mitchell and Z. Jacobs, as principlas, are jointly and severally held and firmly bound to the President, Directors and Company of the Bank of Mount Pleasant, for the use of the said Bank of Mount Pleasant, in the just and full sum of 2100 dollars, lawful money of the United States; to the payment of which sum, well and truly to be made to the said president, directors and company, for the use aforesaid, within sixty days from the date hereof, we jointly and severally bind ourselves, our heirs, &c. firmly by these presents. Signed with our hands, and sealed with our seals this 20th of February, A. D. 1826.
'PETER YARNALL & CO., [SEAL].
'SAMUEL SPRIGG, [SEAL].
'RICHARD SYMMS, [SEAL].
'ALEXANDER MITCHELL, [SEAL].
'Z. JACOBS, [SEAL].'
To the declaration on this obligation, the defendant pleaded the general issue, and six special pleas. The questions which were discussed and decided by the court, were presented on the second plea and sixth.
The second plea was as follows:
2. And for further plea in this behalf, by leave of the court here for that purpose first had and obtained according to the from of the statute in such case made and provided, the said Samuel, by his said attorney, comes and defends, &c., and says, that the said plaintiffs ought not to have or maintain their action aforesaid against him, because he says that the President, Directors and Company of the Bank of Mount Pleasant constitute an incorporated banking company, located at Mount Pleasant, in the county of Jefferson, in the state of Ohio, doing and transacting business in the usual manner of a bank; and that the said 2100 dollars, mentioned in the said writing obligatory, was a loan made by the plaintiffs as such banking company, in the ordinary way of making such loans at said bank, to the said Perter Yarnall & Co., and for their accommodation; and that the said writing obligatory was given to said bank for the sole and only purpose of securing the payment of the said loan at the expiration of thirty days from the date thereof, and that the said Samuel Sprigg, as also the said Richard Symms, Alexander Mitchell and Z. Jacobs, were in truth and in fact securities for the said Peter Yarnall & Co., for the payment of the said loan in sixty days as aforesaid, and were so received and treated by the said plaintiffs; and that the said Peter Yarnall & Co. received for their own exclusive benefit and accommodation the entire amount of the said 2100 dollars, and were so entered and charged on the books of the plaintiffs, in their said bank; and the defendant further avers, that at the time the said writing obligatory became due, to wit, on the 21st day of April, Anno Domini 1826, the said plaintiffs, for and in consideration of 22 dollars 48 cents, paid by the said Peter Yarnall & Co. to the said plaintiffs for the discount or interest in advance on the said 2100 dollars, for sixty days then next following, undertook and agreed with the said Peter Yarnall & Co., without the knowledge or consent of the said Samuel Sprigg, Richard Symms, Alexander Mitchell and Z. Jacobs, or either of them, to give a further credit on the said loan of sixty days and to extend the time of payment thereof for sixty days, from and after the said 21st day of April last aforesaid; and the defendant avers that the said plaintiffs did give to the said Peter Yarnall & Co. the further credit and time of payment thereof for sixty days as aforesaid, and without the knowledge or consent of the said Samuel Sprigg, Richard Symms, Alexander Mitchell and Z. Jacobs, or either of them, and against their will; by means whereof the said Samuel Sprigg says that he is discharged from all liability on or by virtue of the said writing obligatory; and this he is ready to verify: wherefore he prays judgment, &c.
The sixth plea was: