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Prentice v. Zane's Administrator, 49 U.S. 8 How. 470 470 (1850)

Prentice v. Zane's Administrator

49 U.S. (8 How.) 470


Where, in a special verdict, the essential facts are not distinctly found by the jury, although there is sufficient evidence to establish them, this Court will not render a judgment, but remand the cause to the court below for a venire facias de novo.

Therefore, where a suit was brought by an endorsee upon a promissory note, and the special verdict found that the original consideration of the note was fraudulent on the part of the payee, but omitted to find whether the holder had given a valuable consideration for it or received it in the regular course of business, and the court below gave judgment for the defendant, this Court could not decide whether that judgment was erroneous or not, and would have been compelled to remand the case.

But the parties below agreed to submit the cause to the court, both on the facts and the law. This Court must presume that the court below founded its judgment upon proof of the fact as to the manner in which the holder received it, and must therefore affirm the judgment of the court below.

In 1836, Platoff Zane, a citizen of Virginia, being in Pennsylvania, executed the following promissory note:

"$5,437 50/100. Philadelphia, November 28, 1836. Five years after date, I promise to pay to the order of James H. Johnson five thousand four hundred and thirty-seven 50/100 dollars, without defalcation, for value received."


On some day afterwards (the record did not show when), this note was endorsed in blank by Johnson the payee, and delivered to John Stivers, who handed it over to Prentice & Weissinger without putting his own name upon it.

On 8 May, 1840, Prentice & Weissinger filed a bill before the Honorable George M. Bibb, Judge of the Louisville Chancery Court in Kentucky, against the above-named John Stivers and one John Thomas. The bill stated that the complainants and Thomas were sureties for Stivers as principal in a debt which Stivers owed to the Bank of Louisville, that the complainants had paid the debt, and now required Thomas to contribute one-half.

Page 49 U. S. 471

On 16 June, 1840, Thomas answered and also filed a cross-bill. He alleged that Stivers had placed in the hands of Prentice & Weissinger a large amount of securities, and required an exhibition thereof. Weissinger answered the cross-bill and gave in a list of these securities, amongst which was Zane's note, to which was attached the remark that they had received notice that the note would be defended on the ground of no consideration. The answer also offered to transfer all the securities to Thomas for eighty percent of their amount, averring a belief of their insufficiency to pay the debt.

Here these proceedings in chancery stopped.

On 7 November, 1845, Prentice & Weissinger, citizens of Louisville, Kentucky, brought an action of debt against Zane in the District Court of the United States for the Western District of Virginia upon the above-mentioned promissory note.

The defendant pleaded nil debet, and the case went to a jury, who found a special verdict. Before reciting this, it may be mentioned that the deposition of Jacob Anthony, therein referred to, proved that the note in question was passed by Stivers to Prentice & Weissinger, to indemnify them for money paid by them, as his endorsers, in bank.

"The jury said that it found that the note in these words:"

"$5,437 50/100. Philadelphia, November 28, 1836. Five years after date, I promise to pay to the order of James H. Johnson five thousand four hundred and thirty-seven 50/100 dollars, without defalcation, for value received."

"Platoff Zane"

"was made by the defendant and delivered to the payee at the date thereof at Philadelphia, in the State of Pennsylvania, and that said note was endorsed by the payee and delivered by him, so endorsed, to one John Stivers, at the City of Louisville, in the State of Kentucky, before the maturity thereof; that there has not been any evidence submitted to us that said Stivers paid value therefor, or that there was any consideration for such endorsement, unless the same ought to be inferred from the matters herein stated, but should the court be of opinion that, from the facts and evidence herein found, the jury ought to presume that said endorsement to said Stivers was made for a valuable consideration, then we find that the same was made for full value received by the payee from said Stivers therefor; otherwise we find that the same was made without any consideration or value therefor. And we further find that said Stivers afterwards, but before the said note became payable, delivered the same (endorsed in blank by the payee as aforesaid, but not endorsed by the said Stivers) to the plaintiffs, at the City of Louisville aforesaid, for the purposes and upon the

Page 49 U. S. 472

consideration shown in the deposition of Jacob Anthony, and the record of a bill, answer, and cross-bill and answers; which deposition and record are in the words and figures following, to-wit:"

"[The deposition and record were then set forth in extenso, and the special verdict proceeded thus:]"

"We further find that the consideration of said note was fraudulent on the part of the payee, and such that the payee could not recover against the maker upon said note."

"But we further find, that the plaintiffs had no notice of the fraudulent consideration of said note at or before the time the same was delivered to them as aforesaid."

"And we find that the defendant, since the institution of this suit, has duly served the plaintiffs with a notice in the following words, to-wit:"

"An action of debt in the District Court of the United States for the Western District of Virginia between PRENTICE & WEISSINGER, Plaintiffs, and PLATOFF ZANE, Defendant."

" The defendant in this suit will offer evidence to show and will insist at the trial that the note described in the declaration was obtained from him, said defendant, by the payee thereof, by means of misrepresentation and fraud, and without any value having been received therefor by said defendant, and will require the plaintiffs to prove at the trial the consideration, if any, paid by them, or the previous holder or holders thereof, for the same, and the time and manner in which they became possessed of said note. Very respectfully &c.,"


"By JACOB & LAMB, his Attorneys"


" Due service of above admitted."

"M. C. GOOD, Attorney for Plaintiffs"

"We further find the statute of Pennsylvania in force within that state at the time of the execution of said note, and the endorsement thereof and delivery of the same to the plaintiffs as aforesaid, in these words:"

"Act of 27 February, 1797 -- 4 Dall. 102; 3 Smith 278"

"An act to devise a particular Form of Promissory Notes not liable to"

"any Plea of Defalcation or Set-off"

" 6. SEC. 1. All notes in writing, commonly called promissory notes, bearing date in the City or County of Philadelphia

Page 49 U. S. 473

whereby any person or persons, bodies politic or corporate, or co-partnership in trade, shall promise to pay, or cause to be paid, to any other person or persons, bodies politic or corporate, or co-partnership in trade, and to the order of the payee for value in account, or for value received, and in the body of which the words 'without defalcation' or 'without set-off' shall be inserted shall be held by the endorsees discharged from any claim of defalcation or set-off by the drawers or endorsers thereof, and the endorsees shall be entitled to recover against the drawer and endorsers such sums as, on the face of the said notes or by endorsements thereon shall appear to be due, provided always that in every action brought by the holder of any such note, whether against the drawer or endorsers, the defendant may set off and defalk so far as the plaintiffs shall be justly indebted to him in account by bonds, specially, or otherwise."

" (See 8 Serg. & R. 481, and posted notes.)"

" A copy from a copy filed in my office."


" And if the law be for the plaintiffs, then we find for them the sum of $5437.50, the debt in the declaration mentioned, with interest thereon at the rate of six percent per annum from 1 December, 1841, till paid. But if the law be for the defendant then we find for the defendant."


"And because the court will consider of what judgment should be rendered upon the verdict aforesaid, time is taken until tomorrow."

"Memorandum. Upon the trial of this cause, the parties, by their attorneys, filed a written agreement in the words following, to-wit:"

" And the parties agree that the court, in deciding upon the foregoing verdict, shall look to and regard the decisions of the courts of the State of Pennsylvania, as found in the several printed volumes of the reports thereof, to avail as much as if the same were found by said verdict, and to have such weight as in the judgment of the court they ought to have, and the parties further agree to waive all objections to said verdict on account of its finding in part evidence, and not fact. And that the court, in deciding thereupon, may make all just inferences and conclusions of fact and law from the evidence and facts therein stated, and the decisions aforesaid, which, in the opinion of the court, a jury ought to draw therefrom, if the same were submitted to them upon the trial of this cause, and that

Page 49 U. S. 474

this agreement is to be made part of the record in this suit."

"M. C. GOOD, Attorney for Plaintiffs"

"JACOB & LAMB, Attorneys for Defendant"

"Which agreement is ordered to be made a part of the record in this suit."

"On the 9th of September, 1846, the district court pronounced the following judgment, viz.:"

" The matters of law arising upon the special verdict in the cause being argued at a former term of this court and the court having maturely considered thereof, it seems that the law is for the defendant."

A writ of error brought the case up to this Court.

Page 49 U. S. 483

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