The counsel for the plaintiff then prayed the said court to submit to the jury, upon the facts in evidence, the question, whether the defendant, with full knowledge that his agent, Elisha Starr, had assumed in his name to warrant, and had warranted, the title to the land in question to the plaintiff, had ratified the act of the said agent in making such warranty.

The court refused to submit the said question of ratification to the jury upon the evidence in the case, and to such refusal of the said court the counsel for the plaintiff then and there excepted.

The counsel for the plaintiff then prayed the court to instruct the jury, that the agent of the defendant having undertaken to convey a title to the plaintiff, and the defendant having given 461*]*the agent authority so to do, if the jury believe the defendant had no title to the premises described in said deed, at the time of the execution and delivery thereof, then the consideration for which the plaintiff paid his money to the defendant has failed, and the plaintiff is entitled to recover.

The court refused so to instruct the jury, and to such refusal the counsel for the plaintiff excepted.

The counsel for the plaintiff then prayed the court to instruct the jury, that if the defendant's agent made a representation to the plaintiff, as to the title of the defendant to the land described in said deed, which was untrue, and which was material to, and was relied upon by, the plaintiff, so that the plaintiff was actually deceived as to the subject he was acquiring by his bargain, the plaintiff is entitled to recover, whether there was moral fraud or not on the part of the agent in making such representations.

The court refused so to instruct the jury, and to the said refusal the counsel for the plaintiff excepted.

The counsel for the plaintiff then requested the said court to submit to the jury, upon the evidence in the case, the question, whether Elisha Starr, by fraudulent representations, induced the plaintiff to believe that the defendant had title to the land described in said deed when the defendant had no such title, and upon such belief became the purchaser thereof. The court refused to submit such question to the jury, on the ground that the evidence so introduced on the part of the said plaintiff did not go far enough to raise the question of fraud on the part of the agent of the defendant, and decided that the plaintiff must give evidence of knowledge on the part of the agent, at the time of making such representations, that the representations so made were untrue. To which refusal and decision the counsel for the plaintiff then and there excepted.

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counsel for the plaintiff then and there excepted.

The court instructed the jury in respect to the question reserved in the course of the trial, that the power of attorney, *upon a true [*462 construction of its terms and conditions, conferred upon the agent authority to give a deed of the land with covenant of warranty, to which the counsel for the defendant then and there excepted.

The jury thereupon, under the charge of the court, rendered a verdict for the plaintiff, of $2,862.25 damages, and six cents costs.

Upon these several exceptions, the case came up to this court.

It was argued by Mr. Blunt and Mr. Webster for the plaintiff in error, and Mr. Seeley and Mr. Baldwin for the defendant in error.

The counsel for the plaintiff in error made the following points:

1st. That the action of assumpsit does not lie in this case. If the deed were binding on the plaintiff in error, the action should have been on the covenants. Chitty, Pl. 131, 134, 111, 112, 116; 3 Johns. 509; 4 Cranch, 239; Story on Conflict of Laws, 475; 2 Caines, 362; 5 Johns. 239; 4 Cowen, 508, 530; 7 Cranch, 115; 3 Wheat. 212; 2 Co. Litt. 365 a.

2d. The judge erred in instructing the jury, that the power of attorney did authorize Elisha Starr to execute a deed with special covenants. Frost v. Raymond, 2 Caines' Cas. 188; Nixon v. Hyserott, 5 Johns. 58; 12 Ib. 436; 13 Ib. 359; Gibson v. Colt, 7 Johns. 390; 2 Johns. Ch. Cas. 519.

3d. The judge admitted evidence to prove failure of title objected to by the defendant below, which was incompetent.

4th. The judge assumed that, upon the evidence, the defendant below had no title. 5th. The counts in the declaration are bad. 5 Johns. 120; 7 Ib. 259, 376; 13 Ib. 236. The points made by the counsel for the defendant in error were the following:

I. Upon the facts in evidence, it is clear that the title failed.

II. The form of action, being in assumpsit, was right; an action of covenant could not have been sustained in the State of New York. The first count is special, founded on the instrument of conveyance. The second is also special, but more general, and the third contains the common money counts.

The instrument of conveyance executed by Le Roy's agent, has the form and language of a deed with covenants, but has no seal, a scroll being used in place of a seal.

*The form of the remedy depends on [*463 the lex fori.

In Warren v. Lynch, 5 Johns. 329, 1810, the Supreme Court held, that "a scrawl with The counsel for the plaintiff then prayed the the pen, of L. S., at the end of the name, was court to submit the question to the jury, upon not a seal. A seal is an impression on wax or the evidence in the case, whether the agent of wafer, or some other tenacious substance the defendant, at the time of making the rep- | capable of being impressed." It was admitted in resentations so made by him to the plaintiff, that case, that the note declared on, having had not knowledge that the representations so been executed in Virginia. with such scrawl, made by him were untrue.

and the initials L. S. at the end of the maker's

The court refused to submit the said ques-name, had, by the laws of Virginia, "all the tion to the jury, on the ground that no evidence had been given, on the part of the plaintiff, to authorize the submission thereof.

To which refusal of the said court the

efficacy of an instrument sealed with a wafer or wax." Kent, Ch. J., delivering the opinion of the court, says: "By the laws of that State, it was a sealed instrument or deed." A scrawl

with a pen is not a seal;" and it was accord-York, where the suit was instituted, the jury ingly held that in the State of New York, found a verdict for the original plaintiff, on assumpsit was the proper form of action. The which judgment was rendered in his favor, same rule has prevailed, without any exception, to the present time. Van Santwood et al. v. Sandford, 12 Johns. 198; 4 Cowen, 508; 2 Hill, 228; 3 Ib. 493; 1 Denio, 376; 4 Kent's Com. 451.

The rule that the form of action, or remedy, depends on the lex fori, is everywhere recognized as universal. In United States Bank v. Donally, 8 Peters, 362, the court says: "The form of the remedy depends on the lex fori, and though an action of covenant will lie on an unsealed instrument in one State, it will not in another state, where covenant can be brought only on a contract under seal." See, also, Story's Conflict of Laws, 470, 475; De la Vega v. Vianna, 1 Barn. & Adol. 284; Trimbey v. Vignier, 1 Bing. N. C. 151, per Tindal, Ch. J.; 10 Barn. & Cress. 903.

III. The power of attorney from Le Roy gave sufficient authority to Starr, as his agent, to covenant for the title of the premises.

[The counsel then entered into an analysis of the power, and examined each paragraph of it.]

and which the defendant now seeks to reverse by writ of error. Among those instructions, which were excepted to by the defendant, and are at this time to be considered, was, first, that "the action of assumpsit is properly brought in this court, upon the promises of the defendant contained in the deed, if any promises are made therein which are binding or obligatory on the defendant.'

The conveyance in this case was made in the State of Wisconsin, and a scrawl or ink seal was affixed to it, rather than a seal of wax or wafer. By the law of that State, it is provided, that "any instrument; to which the person making the same shall affix any device, by way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed."

But in the State of New York it has been repeatedly held (as in Warren v. Lynch, 5 Johns. 329) that, by its laws, such device, without a wafer or wax, are not to be deemed a seal, and that the proper form of action must be such as is practiced on an unsealed instrument in the State where the suit is instituted, and the lat

4 Rep. 81; 10 Wend. 250; 1 J. J. Marsh. 292; 1 Brod. & Bing. 319; 2 Sugden on Vend-ter must therefore be assumpsit. 12 Johns. ors, 110, Amer. ed. 104; 2 Johns. 595; Co. Litt. sec. 733, note; 1 Ch. Gen. Pr. 312, 313; 2 Penn. 304; 4 Cruise's Dig. 357.

IV. Le Roy cannot disavow in part the contract of his agent, and at the same time retain the money paid by Beard upon the faith of that contract.

198; 2 Hill, 544, 228; 3 Hill, 493; 1 Denio, 376; 5 Johns. 329; Andrews et al. v. Herriot, 4 Cowen, 508, overruling Meredith v. Hinsdale, 4 Kent, 451; 8 Peters, 362; Story's Conflict of *Laws, 47; 2 Caines, 362. [*465 A like doctrine prevails in some other States. 3 Gill & Johns. 234; Douglas et al. v. Oldham, 6 N. H. 150.

V. Assuming that the covenants were not authorized, independently of the preceding It becomes our duty, then, to consider the views, Beard was deceived by the false repre-instruction given here, in an action brought in sentations of Le Roy's agent, and is entitled to the Circuit Court in New York, as correct in recover back the purchase money in the pres

ent action.

VI. The stipulations contained in the instrument of conveyance have been ratified by Le Roy.

relation to the form of the remedy. It was obliged to be in assumpsit in the State of New York, and one of the counts was special on the promise contained in the covenant. We hold this, too, without impairing at all the princi464*] *VII. If the attorney mistook his pow-ple, that, in deciding on the obligation of the ers to covenant for the title, but undertook to covenant and conveyed no title, Beard is entitled to recover on the count for money had and received, on the ground of a total failure of consideration. He did not get that for which he stipulated and paid his money.

Mr. Justice Woodbury delivered the opinion of the court:

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This was an action of assumpsit for money had and received; and also counting specially, that, on the 17th of November, 1836, the original defendant, Le Roy, in consideration of $1,800 then paid to him by the original plaintiff, Beard, caused to be made to the latter, at Milwaukee, Wisconsin, a conveyance, signed by Le Roy and his wife, Charlotte. This convey ance was of a certain lot of land situated in Milwaukee, and contained covenants that they were seized in fee of the lot, and had good right to convey the same. Whereas it was averred, that, in truth, they were not so seized, nor authorized to convey the premises, and that thereby Le Roy became liable to repay the $1,800.

instrument as a contract, and not the remedy on it elsewhere, the law of Wisconsin, as the lex loci contractus, must govern. Robinson v. Campbell, 3 Wheat. 212.

It is further objected here, that an eviction by elder and better title should have been averred in the declaration before a recovery can be had for a breach of warranty.

But such averment is necessary only when the breach is of a covenant for quite enjoy14 Johns. 48. ment, etc. Because, in a breach of the covenant of seisin, it is broken at the time of the conveyance if at all, and no 4 Cranch, 421; 4 eviction_need be alleged. Kent's Com. 474, note. defendant was not seized. Here it virtually appears that the original made to show that he was; and the title, so far Little attempt is as disclosed in the evidence, could not have been in him or his grantors.

It is likewise contended, that, if a covenant legally existed in this case, and was broken, assumpsit lies to recover back the money. That form of action seems at times justified on general principles, beside the rule that in New Under several instructions given by the Cir- York the remedy must be assumpsit on an incuit Court for the Southern District of New'strument like this. 9 Mees. & Wels. 54; 4

Man. & Grang. 68; 5 Adolph. & Ell. 433; | might transfer the title in some events more per6 East, 241. To this the chief objection urged fectly than it would pass without them; and is, that neither assumpsit nor covenant will lie, in case no covenant whatever was made or broken. 3 Bos. & Pull. 170; 2 Johns. Ch. 515; 4 Kent, 474; 3 Ves. 235. But as the facts here do not require a decision on this last point, none is given.

that, if present "personally," he could make such covenants, and would be likely to if requested, unless an intention existed to sell a defective title for a good one, and for the price of a good one. It is hardly to be presumed that any thing so censurable as this was contemplated. The next instruction to which the original *Again, his authority to sell, "on [*467 defendant objected, and which is the chief and such terms in all respects as he may deem most most difficult one that can properly be consid-eligible," might well be meant to extend to a ered by us, under the present bill of exceptions, | term on condition to make covenants of seisin is, that the power of attorney by Le Roy and or warranty, as without such he might not be his wife to Starr, their agent, was broad enough able to make an eligible sale, and obtain nearly to confer upon him "authority to give a deed so large a price. of the land with covenant of warranty."

Now, all these expressions, united in the same This power of attorney is given in extenso in instrument, would prima facie, in common acthe statement of the case. It appears from its ceptation, seem designed to convey full pow466*] contents, that Le Roy, after *authorizers to make covenants like these. And aling Starr to invest certain moneys in lands and though a grant of powers is sometimes to be real estate in some of the Western States and construed strictly (Com. Dig. Poiar, B. 1 and territories of the United States, at the discre- c. 6; 1 Bl. R. 283), yet it does not seem fit to tion of the said Starr, empowered him "to con- fritter it away in a case like this, by very nice tract for the sale of, and to sell, either in whole and metaphysical distinctions when the general or in part, the lands and real estate so purchased tenor of the whole instrument is in favor of by the said Starr," and "on such terms in what was done under the power, and when the all respects as the said Starr shall deem most grantor has reaped the benefit of it, by receivadvantageous." Again, he was authorized to ing a large price that otherwise would probexecute “deeds of conveyance necessary for ably never have been paid. Nind v. Marshall, the full and perfect transfer of all our respec-1 Brod. & Bing. 319; 10 Wendell, 219, 252. tive right, title," etc., "as sufficiently in all respects as we ourselves could do personally in the premises," "and generally, as the agent and attorney of the said Jacob Le Roy," to sell "on such terms in all respects as he may deem most eligible."

It would be difficult to select language stronger than this to justify the making of covenants without specifying them eo nomine. When this last is done, no question as to the extent of the power can arise, to be settled by any court. But when, as here, this last is not done, the extent of the power is to be settled by the language employed in the whole instrument (4 Moore, 448), aided by the situation of the parties and of the property, the usages of the country on such subjects, the acts of the parties themselves, and any other circumstance having a legal bearing and throwing light on the question.

That the language above quoted from the power of attorney is sufficient to cover the execution of such a covenant would covenant would seem naturally to be inferred, first, from its leaving the terms of the sale to be in all respects as Starr shall deem most advantageous. "Terms" is an expression applicable to the conveyances and covenants to be given, as much as to the amount of, and the time of paying, the consideration. Rogers v. Kneeland, 10 Wendell, 219. To prevent misconception, this wide discretion is reiterated. The covenants, or security as to the title, would be likely to be among the terms agreed on, as they would influence the trade essentially, and in a new and unsettled country must be the chief reliance of the purchaser.

This he must refund when the title fails, or be accessory to what seems fraudulent. 1 J. J. Marsh. 292. Another circumstance in support of the intent of the parties to the power of attorney to make it broad enough to cover warranties, is their position or situation as disclosed in the instrument itself. Solly v. Forbes, 4 Moore, 448. Le Roy resided in New York, and Starr was to act as his attorney in buying and selling lands in the "Western States and territories," and this very sale was as remote as Milwaukee, in Wisconsin. For aught which appears, Le Roy, Beard, and Starr were all strangers there, and the true title to the soil little known to them, and hence they would expect to be required to give warranties when selling, and would be likely to demand them when buying.

The usages of this country are believed, also, to be very uniform to insert covenants in deeds. In the case of The Lessee of Clarke v. Courtney, 5 Peters, 349, Justice Story says: "This is the common course of conveyances; and that in them "covenants of title are usually inserted." See, also, 6 Hill, 338. Now, if in this power of attorney no expression had been employed beyond giving an authority to sell and convey this land, saying nothing more extensive or more restrictive, there are cases which strongly sustain the doctrine, that, from usage as well as otherwise, a warranty by the agent was proper, and would be binding on the principal.

It is true, that some of these cases relate to personal estate, and some perhaps should be confined to agents who have been long employed in a particular business, and derive their auTo strengthen this view, the agent was also thority by parol, no less than by usage; and enabled to execute conveyances to transfer the consequently may not be decisive by analogy title "as sufficiently in all respects as we our- to the present case. 3 D. & E. 757; Helyear selves could do personally in the premises.' "*v. Hawke, 5 Esp. Cas. 72, note; [*468 And it is manifest, that inserting certain Pickering v. Bush, 15 East, 45; 2 Camp. N. P. covenants which would run with the land 555; 6 Hill, 338; 4 D. & E. 177.

So of some cases which relate to the quality, and not the title, of the property. Andrews v. Kneeland, 6 Cowen, 354; The Monte Allegre, 9 Wheat. 648; 6 Hill, 338.

But where a power to sell or convey is given in writing, and not aided, as here, by language conferring a wide discretion; it still must be construed as intending to confer all the usual means, or sanction the usual manner of performing what is intrusted to the agent. 10 Wendell, 218; Howard v. Baillie, 2 H. Bl. 618; Story on Agency, p. 58; Dawson v. Lawly, 5 Esp. Cas. 65; Ekins v. Maclish, Ambler, 186; Salk, 283; Jeffrey v. Bigelow, 13 Wendell, 527; 6 Cowen, 359. Nor is the power confined merely to "usual modes and means," but, whether the agency be special or general, the attorney may use appropriate modes and reasonable modes; such are considered within the scope of his authority. 6 Hill, 338; 2 Pick. 345; Bell on Com. L. 410; 2 Kent's Com. 618; Vanada v. Hopkins, 1 J. J. Marsh. 287; Sanford v. Handy, 23 Wendell, 268. We have already shown, that, under all the circumstances, a covenant of warranty here was not only usual, but appropriate and reasonable.

Again, "all powers conferred must be construed with a view to the design and object of them." 1 J. J. Marsh. 287. Here that design was manifestly in the discretion of the agent, to sell as he might deem most advantageous. Again, if a construction be in some doubt, not only may usage be resorted to for explanation (Story on Agency, p. 73; 5 D. & E. 564), but the agent may do what seems from the instrument plausible and correct; and though it turn out in the end to be wrong; as understood by the principal, the latter is still bound by the conduct of the agent. Lomax v. Cartwright 3 Wash. C. C. 151; 2 Ib. 133; 4 Ib. 551; 6 Cowen, 358, in Andrews v. Kneeland. Because the person who deals with the agent is required like him to look to the instrument to see the extent of the power (7 Barn. & Cress. 278; 1 Peters, 290); and if it be ambiguous, so as to mislead them, the injurious consequences should fall on the principal, for not employing clearer terms. 2 Barn. & Ald. 143, in Barin v. Corrie; 1 Peters, 290; Courcier v. Ritter, 4 Wash. C. C. 551; 23 Wendell, 268.


In the next place, the acts of the parties themselves tend here to strengthen the construction of the words in the power, so as to authorize a warranty, and these acts, it is competent to consider in order to remove doubt. Pick. 222; 1 Metcalf, 378; Paley on Agency, 198; Mechanics' Bank of Alexandria v. Bank 469*] *of Columbia, 5 Wheat. 326; and Bac. Abr. Covenant, F.; 5 D. & E. 564; 1 Green

leaf on Ev. sec. 293.

wards both the agent and the plaintiff, as if he had meant covenants should be made. 14 Johns. 238; All Saints Church v. Lovett, 1 Hall, 191.

Finally, the decided cases on this question, though in some respects contradictory, present conclusions as favorable to this construction, as do the peculiar language used in the power and the weight of analogy. See 23 Wend. 260, 267, 268; Nelson v. Cowring, 6 Hill, 336; Vanada v. Hopkin's Ad. 1 J. J. Marsh. 293; 13 Wendell, 521, Semble. Nixon v.


Some earlier cases were contra. Hyserott, 5 Johns. 58; Van Eps v. Schenectady, 12 Johns. 436; and Ketchum v. Everston, 13 Johns. 365; 7 Johns. 390.

But in these the power was merely to give a deed of a certain piece of property, and could be construed as it was, without directly impugning our views here. Whereas, in the present case, the power was manifestly broader in terms and design. Wilson v. Troup, 2 Cowen, 195; 6 Cowen, 357.

The earlier cases in New York, bearing on this subject, are also considered by its own courts as overruled by the later ones. Bronson, J., in 6 Hill, 336.

It may be proper to add, that the general conclusions to which we have arrived are more satisfactory to us, if not more right, because they accord with what appears to be the justice of the case, which is, that the plaintiff should not keep money which would probably not have been obtained except by these very covenants, and which it must be inequitable, therefore, to retain and at the same time avoid the covenants.

The judgment below is affirmed.
Mr. Justice McLean dissented.


This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District *of New York, and was argued by coun-[*470 sel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs, and damages at the rate of six per centum per annum.

GEORGE D. PRENTICE and George W. Weissinger, Copartners doing Business under the Style and Firm of Prentice & Weissinger, Plaintiffs in Error,

The agent's acts on this subject are strong. He construed the instrument as if empowering him to make the warranty, and made it accordingly. He was to gain nothing for himself, by such a course, if wrong, and does not appear to have done it collusively with anybody. 2 A

Bro. Ch. 638.

The principal, too, when asked for redress, and when corresponding on the subject, does not appear to have set up as a defense, that he did not intend, by this instrument, to authorize a conveyance with warranty. On the contrary, for some time he conducted himself to

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venire do novo must be awarded where special verdict finds only evidence of factsagreements that judges may draw inferences of fact-presumption of finding to support judgment.

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 indorsee 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.


HIS case was brought up by writ of error from the District Court of the United States for the Western District of Virginia. In 1836 Platoff Zane, a citizen of Virginia, being in Pennsylvania, executed the following promissory note:

vember 28th, 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 indorsed by the payee, and delivered by him so indorsed, to one John Stivers, at the city of But the parties below agreed to submit the cause Louisville, in the State of Kentucky, before to the court, both on the facts and the law. court must presume that the court below founded the maturity thereof; that there has not been its judgment upon proof of the fact as to the manner in which the holder received it, and must there any evidence submitted to us that said Stivers ner in which the holder received it, and must there-paid value therefor, or that there was any confore affirm the judgment of the court below. sideration for such indorsement, 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 indorsement 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 (indorsed in blank by the payee as aforesaid, but not indorsed by the said Stivers) to the plaintiffs, at the city of Louisville aforesaid, for the purposes and upon the *consid- [*472 eration 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):

"$5,437.50. Philadelphia, November 28th, 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."

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.

On some day afterwards (the record did not show when), this note was indorsed 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 the 8th of 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. 471*] *On the 16th of 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 securi-ered to them as aforesaid. ties, and and required an exhibition thereof. And we find that the defendant, since the inWeissinger answered the cross bill, and gave stitution of this suit, has duly served the plainin a list of these securities, amongst which was tiffs with a notice in the following words, to Zane's note; to which was attached the re- wit: mark, 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 per cent, of their amount, averring a belief of their insufficiency to pay the debt.

Here these proceedings in chancery stopped. On the 7th of 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 indorsers, in bank.

The jury say, that they find that the note in these words—“$5,437.50. Philadelphia, No

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 deliv

"An action of debt, in the District Court of the United States for the Western District of Virginia, between

"Prentice & Weissinger, Plaintiffs,


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, etc., "Platoff Zane, "By Jacob & Lamb, his Attorneys. "To Messrs. Prentice & Weissinger." "Due service of above admitted. "M. C. Good, Attorney for Plaintiffs."

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