Stewart v. United States Insurance

The opinion of the court was delivered by Kennedy, J. Upon examination of the record in this case, and the exceptions taken by the counsel for the plaintiff in error, we are unable to perceive any error in it; or that the learned judge of the district court committed any on the trial of the cause; unless it was in leaving it as a question of fact to the jury, to decide that the note in suit was not taken and received by the United States Insurance Company in the usual course of business; and if so, that they were not, therefore, to be regarded as bona fide holders of it; but as having taken it subject to every objection which could have been raised against the payment of it, by the plaintiff in error, in the hands of the Susquehanna Bridge and Banking Company. In [129] this we think the learned judge erred; because, in our view of the evidence, it does not appear that any part of it tended, in the slightest degree, to prove that the United States Insurance Company did not receive the note in the usual course of business, for a valuable consideration, given by them for it, without any knowledge of the consideration and circumstances for and under which it was originally given, or that any objection could be made to the payment of it. There being then no such evidence given on the trial, the presumption was, that the United States Insurance Company were bona fide owners and holders of the note. And not only so, but this presumption was also supported by the positive and direct testimony of S. H. Fleetwood; and hence, the judge ought to have so instructed the jury. The plaintiff in error, however, can not take advantage of this error, because it could not possibly do him any prejudice, but might have operated in his favour with the jury. And besides, the jury have decided the issue, precisely as they would have done under a correct charge from his honour on this point; so that no ground of complaint, on account of it, remains to either party. Seeing then the United States Insurance Company became bona fide holders of the note, in the usual course of business for a valuable consideration, the question whether our act of assembly, passed the 28th of March, 1808, forbidding any company incorporated in another state to establish a banking house, or office of discount and deposite in this state, under a penalty of 2000 dollars, was infringed by the Susquehannah Bridge and Banking Company or not, did not necessarily arise on the trial of the issue; and consequently need not be passed on here by us. We, therefore, wish it to be understood that we do not intend by our decision of the cause, to intimate any opinion whatever on that question, But in the decision of the district judge, given on all the other points, except the two already noticed, we concur most fully and Judgment affirmed.