Lazear v. National Union Bank

Inadmissibility of Parol evidence to vary a Written contract— Statute of Frauds—When Usury does not avoid a Contract —National Banks not authorized under the Banking Act to purchase Notes—Province of the Jury. Parol evidence is not admissible to contradict, vary, add to, or subtract from the terms of a written instrument. When parties have entered into a written agreement, it is only reasonable to suppose, that they have introduced into the written instrument every material term and circumstance; and, consequently, all parol testimony of conversations held between the parties, whether before, or after, or at the time of the completion of the contract, will be rejected. Where the Statute of Frauds requires a contract to be in writing, to make it valid, it cannot be partly in writing and partly in parol. An action was instituted by the appellee against the appellant to recover on the following guaranty of the latter, executed on the 3rd of February, 1870. 11 For value received, I hereby guarantee to the National Union Bank of Maryland, at Baltimore, all liabilities to said bank, of Lazear Brothers, now existing, or which may hereafter arise, to the extent of twenty-five thousand dollars, I hereby holding myself liable to said bank to that extent for all paper that may be held by the bank, of Lazear Brothers, either as drawers or endorsers, in the same manner as if endorsed by me, I hereby waiving notice of protest of such paper.” The defendant offered parol evidence for the purpose of raising and explaining a latent ambiguity in the guaranty—that there was more than one class of paper held by the Bank, to which the contract of guaranty might be applied, and contended, that the evidence was admissible to show, that the parties intended it to apply to, and cover only such paper as should be discounted by the bank for the benefit of Lazear Brothers. Held : That there was no obscurity or ambiguity in the language employed, nor any uncertainty as to the subject-matter upon which the contract was intended to operate; that to the extent of twenty-five thousand dollars it covered all paper that might be held by the Bank, upon which Lazear Brothers were either drawers or endorsers; and that the evidence offered, which could have had no other effect than to limit and restrict the terms of the guaranty, and to show that the language used in it did not mean what it clearly and plainly expressed, was inadmissible. The demand and receipt by a National Bank of usurious interest from endorsers upon notes discounted by it, the payment of w’hich notes was guaranteed to the bank by L. in a written guaranty, does not avoid the contract of guaranty between L. and the Bank. A National Bank has no authority finder the Banking Act to use its funds in purchasing notes, and can acquire no title thereto by the purchase. Where a guaranty is given to a National Bank for all liabilities to said bank of certain parties, then existing or which might thereafter arise, to the extent of an amount specified, the guarantor holding himself liable to that extent for all paper that might be held by the Bank of said parties, either as drawers or endorsers, and the Bank subsequently discounts paper, of which said parties were drawers or endorsers, it is exclusively within the imovince of the jury in an action by the Bank against the guarantor, to determine whether the money was parted with by the Bank on the faith of the guaranty or otherwise.

Appeal from the Superior Court of Baltimore City. Lazear Brothers, who had been for some years engaged in the wholesale grocery business, keeping their commercial account in the Western Rational Bank of Baltimore, in 1868, at the invitation of Mr. William W. Spence, a director in the Rational Union Bank of Maryland, transferred their account to the latter bank. Becoming its depositors or customers, they frequently offered for discount to the appellee country paper, mostly of their Western country customers, which was unknown to the Bank; they also offered notes, to a limited extent, drawn by their father, the appellant, to their order and by them endorsed. This action was instituted by the appellee to recover of the appellant on the following guaranty: “ For value received, I hereby guarantee to the Rational Union Bank of Maryland, at Baltimore, all liabilities to said bank of Lazear Bros., now existing, or which may-hereafter arise, to the extent of twenty-five thousand dollars, I hereby holding myself liable to said bank to that extent, for all paper that may be held by the bank of' Lazear Bros., either as drawers or endorsers, in the same manner as if endorsed by me, I hereby waiving notice of' protest of such paper.” (Signed,) “Jesse Lazear.” At the trial of the cause, the appellee offered in evidence the foregoing guaranty, which was conceded to have been executed on the 3rd of February, 1870, and proved the genuineness of the appellant’s signature thereto. Theappellee also offered in evidence seven promissory notes, of which it was the holder, all drawn by Lazear Brothers, to their own order, and endorsed by themselves, six of' which were also endorsed by W. D. Schurtz & Go., who were also customers of the appellee, and for whom the-said six notes were discounted, the j>roceeds being carried through the books of the appellee to the credit and for-the benefit of said W. D. Schurtz & Co., by whom these-notes were offered for discount. The remaining note,, dated the 22nd of June, 1872, at ninety-five days, for $5000,, was purchased by the appellee from James Winchester & Son, brokers. The notes were all put in evidence, subject to exception. It was proved by Mr. Taylor, President of' the appellee, that these notes were acquired by the appellee on the faith of and looking to the guaranty given by the appellant; and that payments had been received on account of the six notes by collection of a note of August. Douglass, obtained as a collateral from Schurtz & Co.,, and by dividends from the trustee of Schurtz & Co., and that payments had been made on all the notes by dividends received from the assignees in bankruptcy of Lazear Brothers. This action was brought to recover the balance due on these notes. It was in evidence that the six notes, referred to, were discounted at the rate of seven and one-half per centum per annum, by agreement between the parties and the appellee, and the remaining note was bought at the rate of nine per cent, per annum. First Exception.—The appellant, during the cross-examination of Mr. W. W. Taylor, President of the appellee, proposed to him this question: “’Tell the jury what was the occasion of this paper (referring to the guaranty ■offered in evidence) being suggested,” but the question was objected to by the appellee, thereupon the appellant, in order to explain his purpose in asking such question, and the proof intended to be elicited thereby, offered the following statement: “ The defendant, for the purpose of showing that the indebtedness of Lazear Brothers to the Bank, as its customers, and for paper drawn or endorsed by them and discounted by the Bank for their account, and not the general indebtedness of Lazear Brothers to the Bank for any paper of theirs which it might buy from outside parties, or discount for others of its customers, was the subject of the guaranty given in evidence. And for the further purpose of enabling the Court to apply the said .guaranty to its proper subject by reference to the surrounding facts and circumstances. And for the further purpose of proving the real consideration of the said guaranty between the parties thereto. And also for the purpose of enabling the Court to determine whether or not the said guaranty was a continuing guaranty. And for the purpose of showing a latent ambiguity in said guaranty as to the subject-matter .to which it was applicable and of removing said ambiguity, offered to prove:” “ (That the firm of Lazear Brothers were customers of the plaintiff at the date of the guaranty, and had so been for two years or thereabouts prior thereto; that they had been prior to and were at that date in the habit of asking ■and receiving discounts from the plaintiff on paper of their [Lazear Brothers’] customers, endorsed by themselves, and sometimes by tbeir father, the defendant in this case; that it was often inconvenient to procure the endorsement of defendant, as he was a resident of the county.) And that the said guaranty was requested of the said Lazear Brothers hy the plaintiff, and given accordingly by the defendant to the plaintiff, as a substitute for such endorsements in the future, and to prevent the delay and inconvenience of obtaining them, and for the purpose of giving credit to Lazear Brothers in their direct dealings with the plaintiff as its customers, and in respect to paper discounted, or to he discounted hy it for their direct benefit and account, and on their application, and not otherwise. And also to show that there was an express agreement and understanding at the time of the delivery of said guaranty that it was only to apply to paper discounted for the use of Lazear Brothers.” But the appellee objected to the admissibility of the proof so offered, and to every part of it except to the introductory part thereof contained within brackets, and the Court (Dobbin, J.) excluded all of the said proof) except the part aforesaid, from the jury; to which ruling of the Court, and the exclusion of the proof from the jury, the appellant excepted. Second Exception.-—The appellant, after the plaintiff had closed its case in chief, presented to the Court a statement setting forth the proof intended and offered to he given hy William W. Spence, and hy the defendant, and hy other witnesses in his behalf, as follows : [ “ The defendant offers to prove hy William W. Spence, a director of the plaintiff, prior to and at the time of the execution of the guaranty sued upon, and hy the defendant, and other witnesses, that the firm of Lazear Brothers were invited hy the said Spence to transfer their account from the Western Bank to the National Union Bank, (the plaintiff,) and did so at his invitation ; that they were in the habit of offering for discount hy said plaintiff a good deal of country paper of such as the Bank by its rules of discounting required, two dollars for one, unless there was a city endorser, besides the customer offering the same ;] that fit a meeting of the Board, in which the matter was discussed, the said Spence suggested that, in order to protect the Bank, in discounting such paper for Lazear Brothers, and to supersede the necessity of exacting two for one, or an additional city endorser, the Bank should request Lazear Brothers to give it a guaranty from their father, the defendant, of the same sort as the one he had given the Western Bank, to the knowledge of the said Spence, and whereby he should indemnify the Bank to a certain amount for such discounts as the Bank might make for Lazear Brothers; that the Board approved of the suggestion, and authorized Mr. Spence to communicate it to Lazear Brothers, which he did, and they agreed accordingly to procure such a guaranty on such purpose from their father, to the amount of $25,000 ; that Mr. Spence reported to the Board his conversation with the Messrs. Lazear and its result, and their promise to procure such a guaranty, which the Board approved and accepted, and requested Mr. Spence to see the Messrs. Lazear Brothers and ask them to see Mr. Mickle, the cashier of the plaintiff, who would prepare such a paper, which Mr. Spence accordingly did; that James Lazear, one of the firm, accordingly saw Mr. Mickle, who gave him the guaranty here offered in evidence, which he took to the defendant, who asked whether it was to the same effect as the guaranty above mentioned, given to the Western Bank, i. e., to guarantee payment of paper discounted by the Bank for Lazear Brothers, to which said James Lazear, in good faith and so believing, answered in the affirmative, whereupon the said defendant, in like good faith and so believing, signed the said guaranty, without reading the same; that said James Lazear took the said guaranty to Mr. Mickle, and delivered it to him, saying to him, that it was of course understood between them, that said paper guaranteed nothing hut the paper signed by, or endorsed by Lazear Brothers, and discounted by the Bank for them, to which Mr. Mickle replied, “ That’s all; ” and said Lazear delivered the guaranty to him accordingly with that common understanding between them, so expressed and recognized by both, and not otherwise.” “ This evidence is offered to show, not merely the subject of the said guaranty, and apply the language of the guaranty to such subject, and for the other purposes named in the defendant’s offer of evidence, heretofore made and rejected, hut. also to show that the guaranty as offered and construed by the plaintiff, was not the contract or guaranty of the defendant, and that the use attempted to he made of it, by the plaintiff in this action, and for the purposes of recovering therein upon or to the extent of the notes offered in evidence, would he a fraud on the defendant.” But the Court on the plaintiff’s objection, excluded all proof as to the matters and things contained in the said offer, except the portions included within brackets; to this ruling of the Court, and the exclusion of the proffered proof the defendant excepted. Third Exception.—The appellant further offered in evidence an account furnished to him by the appellee, showing the amount of interest charged to the firm of Lazear Brothers by the appellee from September 13th, 1869, to September 9th, 1812, which was offered for the purpose of proving, in connection with other evidence given or to he given, that the appellee knowingly and unlawfully charged to, and reserved, received and took from Lazear Brothers, a rate of interest greater than that allowed by the law of the State of Maryland, in violation of Revised Statutes of the United States, Title lxii, sections 5191 and 5198. The claim of the appellant and the purpose of said evidence being to establish that the appellant was entitled to have the whole of said interest credited for his benefit, to the said Lazear Brothers, in account between them and the appellee, or to recoup, or set-off the same on their behalf, and for his benefit against the appellee’s demand in this action. But the appellee objected to the admissibility of said offer or any part thereof, and the objection was sustained by the Court. To this ruling and action of the Court the defendant excepted. Fourth Exception.—The appellant further offered to prove by William L. Lazear, in open Court, the matters and things contained in his deposition de bene esse, theretofore taken in this case. But the appellee objected to the admissibility of said matters and things in evidence, or any part thereof) and the Court excluded all of such proof from the jury; and to this ruling the appellant excepted. Fifth Exception.—William L. Lazear was then examined, and testified among other things, that after the execution of the guaranty of February 3rd, 1870, he did in one instance offer for discount to the appellee, some paper drawn by his firm, (Lazear Brothers,) but that the same was not discounted, and that no reason was assigned for its being turned down ; that the paper generally offered by them for discount was that of customers residing in Pittsburg, and other large cities out of Maryland; that in discounting their paper, the Bank requested his firm through one of its agents, to give an endorsement on out of town paper, shortly after their account was opened, probably in January, 1870. The witness was then asked “ whether the Bank, (the appellee,) required from him anything else as a security, except endorsement upon country paper,” to which question, he replied, “ the same messenger, the same agent of the hank asked for a guaranty in lieu of such endorsement thereupon the appellee objected to all of said answer, except “ that the Bank asked for a guaranty,” and the Court excluded the other part of said answer, i. e. “ in lieu of an endorsement,” and the appellant excepted to such exclusion. Sixth Exception.—After further proof, and the testimony on both sides being closed, the defendant filed a formal motion for the exclusion of the several promissory notes which had been offered in evidence subject to exception; this motion the Court refused. The plaintiff offered the following prayer: If the jury find from the evidence, that the guaranty offered in evidence by the plaintiff, dated Eeb. 3rd, 1810, was executed by the defendant and accepted by the plaintiff, and that the seven promissory notes offered in evidence were executed by Lazear Brothers, as drawers, and were discounted by the plaintiff, as shown by the evidence, and have been held by the plaintiff ever since, and that they were so discounted by the plaintiff, looking to the said guaranty, and on the faith thereof, and that said Lazear Brothers made default in the payment of said notes, and that they still remain unpaid, except to the extent of the payments offered in evidence, then the plaintiff is entitled to recover the amount of said notes with interest, less the payments thereon, as offered in evidence; unless the jury shall find that the note for $5000, offered in evidence, was in fact discounted by the plaintiff for the use and benefit of Lazear Brothers, at a rate of interest greater than six per cent., in which case the jury will (also deduct from the amount of said note, in addition to the credits above mentioned, the amount of interest reserved by the plaintiff in making said discount.) And the defendant, should the Court decline to exclude from the consideration of the jury the promissory notes given in evidence by the plaintiff, subject to exception, prayed the Court to instruct the jury as follows : 1. That if they shall believe from the whole evidence in the cause, that the guaranty of the defendant, construed in the light of the circumstances under which it was demanded and executed, and which have been given in evidence, applies only to liabilities of Lazear Brothers, contracted by them as customers of the Bank, and in their ■own dealings with it as such customers, and not to paper discounted for or purchased from other persons by the Bank, then the verdict of the jury must be for the defendant. 1-J-. That if the jury shall find from the relative position, and the relations of the Bank and its customers, Lazear Brothers, at the time of the execution of the guaranty in controversy, and from all the circumstances surrounding the transaction, as given in evidence, that the said guaranty was intended by and between the parties thereto, to apply only to the liabilities which had been or might thereafter be incurred by Lazear Brothers to the Bank, in the dealings between it and them as Bank and customers, and shall further find that the promissory notes produced in evidence by plaintiffs, became the property of the Bank in the manner and under the circumstances testified to by the witnesses, Messrs. Taylor and Winchester, then the defendant is not liable for said notes under his said guaranty, and the verdict of the jury must be for defendant. 2. If the jury shall find from the whole evidence that the guaranty of defendant was demanded and given for the purpose of securing the Bank against loss, upon usurious transactions had or to be had between the Bank and Lazear Bros., then the said guaranty was void, and the plaintiff cannot recover thereupon in this action. 3. If, however the jury shall find from the whole evidence that the said guaranty was not demanded or given, or intended between the parties thereto, to secure the Bank against loss upon usurious transactions between it and Lazear Brothers, their verdict must still he for the-defendant, it being admitted that the notes offered in evidence hy the plaintiff were knowingly discounted or acquired hy the plaintiff at usurious rates. 4. If the jury shall hold that the construction of the-defendant’s guaranty, under and in view of all the evidence in the cause, is for the Court, and shall reject the prayers of defendant, marked respectively, “ 1 and the defendant prays the Court to instruct the jury, that in view of the whole evidence in the cause, the said guaranty applies only to such liabilities of Lazear Brothers, as had been or might he incurred by them as customers of the-Bank, and in dealings between it and them as Bank and customers; and if the jury shall find that the liability of Lazear Brothers, upon the promissory notes given in evidence, was not incurred hy them as such customers, and in such dealings, the plaintiff is not entitled to-recover. 5. And the defendant further prays the Court, so construing said guaranty, to determine, as matter of law,, that the said guaranty properly construed, does not apply to usurious transactions between the plaintiff and LazearBrothers, and it being admitted hy the plaintiff that the plaintiff discounted all the notes in evidence at usurious rates, defendant prays the Court to instruct the jury to-find for the defendant. 5-|. That there is no evidence in the cause, that at the-time of the execution and delivery of the guaranty in suit, the defendant was notified or knew that usurious transactions of any sort were in contemplation of the plaintiff under said guaranty, or that the defendant was ever thereafter notified or knew that any transactions were had or contemplated hy the plaintiff, or ever assented to or authorized such transactions in any way. And in the absence of such evidence the plaintiff is not entitled to recover upon the-notes in controversy, which are admitted to have been, discounted at usurious rates. 6. If the jury shall find that six of the notes offered in evidence, drawn hy Lazear Brothers, were discounted by the plaintiff, for the use and benefit of W. D. Schurtz &■ Co., customers of the said plaintiff, and hy whom said notes were endorsed to the plaintiff, and that the same were duly protested for non-payment, and were then, and now are, held hy the plaintiff, and that said Schurtz & Co., continued to he customers of said plaintiff down to the time of the institution of this suit, and that a balance in favor of said Schurtz & Co., is credited to them on the hooks of the plaintiff under date of October —, 1872, and that said balance was carried to the account of said Schurtz & Co., in February, 1873, and that during the month of February, 1873, large sums of money were deposited with the plaintiff hy said Schurtz & Co. And shall further find, that neither the balance credited in October, 1872, nor any portion of the subsequent deposits made hy Schurtz & Co., as aforesaid, were held or applied by the plaintiff in payment of the said notes given in evidence, then the plaintiff failed to exercise its rights as a Bank, and was guilty of a breach of duty towards the defendant under the guaranty offered in evidence; and if the jury shall find that the plaintiff had funds of Schurtz & Co. in its custody, after the dishonor of said notes, sufficient to pay the same, and did not hold and apply the said funds to the payment thereof, it is not entitled to recover the amount of said notes in this action. Or if the jury shall find the facts first above recited, and shall further find that the plaintiff, after the dishonor of said notes, had funds of Schurtz & Co. in its custody sufficient to pay the said notes in part, hut failed so to apply the same, then the plaintiff is not entitled to recover to the extent of such funds on the said notes against the defendant. 7. If the jury shall find from the evidence that the note of June 22nd, 1872, drawn hy Lazear Brothers, payable to their order ninety-five days after date, for $5000, was not discounted hy the plaintiff for said Lazear Brothers, hut that the same was purchased from James Winchester & Son, note and hill brokers, without the knowledge or by the direction of Lazear Brothers, as testified to by the witness, Winchester, then the said note was obtained by the plaintiff in contravention of the seventh sub-section of section 5136, of the Revised Statutes of the United States, defining the powers of the National Banks, and the plaintiff is not entitled to recover the amount thereof under the guaranty offered in evidence. 8. If the jury shall find from all the facts and circumstances offered in evidence, that the guaranty dated February 3rd, 1810, was requested by the plaintiff, and was executed by the defendant to indemnify the plaintiff against loss on notes, either drawn or endorsed by the Messrs. Lazear Brothers, and which the plaintiff had obtained, or might obtain, in the usual and legitimate course of its business; and if they shall further find, that the notes offered in evidence were obtained either from the witness, Winchester, or from others, at a rate of interest greater than that which is allowed by the law of Maryland, then the said notes cannot be protected under the said guaranty, and the plaintiff is not entitled to recover upon the same. 9. If the jury shall find from all the facts and circumstances of the case, that the guaranty dated February 3rd, 1810, was requested by the plaintiff from the Messrs. Lazear Brothers, and was executed and delivered by the defendant with the understanding and intention between the plaintiff and the defendant, and for the purpose of securing the plaintiff against loss in transactions forbidden hy law in the usurious purchase or discounting of notes drawn or endorsed by the Meesrs. Lazear Brothers, then the said guaranty is illegal and void, and the plaintiff is not entitled to recover upon the same. 10. If the jury shall find from all the facts of this case, that the plaintiff, prior to the 3rd of February, 1810, was a National Bank, located in the City of Baltimore, and organized under and by virtue of the provisions of an Act of Congress, approved June 3rd, 1864, entitled an “Act to establish a national currency hy a pledge of United States bonds, and for the circulation and redemption of the same,” and that the Measrs. Lazear Brothers then were, and thereafter continued to be, merchants of said city, and depositors with and customers of said plaintiff, and that the plaintiff before the said date undertook and agreed to discount notes, either drawn or endorsed hy said Lazear Brothers, at a uniform rate of interest greater than that which is allowed hy law; and shall further find that subsequently to the agreement aforesaid, the said plaintiff requested from said Lazear Brothers, a guaranty to secure the plaintiff against loss on notes so discounted hy the said plaintiff', and that the guaranty offered in evidence was obtained by said Lazear Brothers from the defendant, and hy them was delivered to the plaintiff, and was accepted hy the plaintiff in contemplation of and for the furtherance and promotion of the said agreement entered into hy and between the plaintiff and Lazear Brothers; (if the jury shall find the same,) and if the jury shall also find that on all the notes offered in evidence by the plaintiff, the plaintiff took, received, reserved or charged interest at the rate of seven and one-half per centum, or any rate greater than that which is allowed hy the law of the State of Maryland, then the said guaranty was and is a contract made in contemplation and for the furtherance and promotion of acts prohibited by the supreme law of the land, contrary to the policy of the State of Maryland, and with reference to—as recognized by the Revised Statutes of the United States, and is illegal and void, and the plaintiff is not entitled to recover in this action. (Eleventhprayer wanting.) 12. If the jury, shall find their verdict for the plaintiff under ’the instructions of the Court, in assessing the damages to which the plaintiff may he entitled, the jury are hot at liberty to award an aggregate sum greater than the respective amounts of principal which they shall find from all the evidence were paid by the plaintiff by way of discount on the several notes offered in evidence, without interest on said principal sums from the maturity of said several notes, and subject to deductions for payments made on account of the same; with interest on such payments in the discretion of the jury. 13. If the jury 'shall find that the defendant as testified by himself, agreed to the compromise with Schurtz & Co., as set forth or referred to in his letter of Feb. 21st, 1873, and never afterwards agreed to any other composition or arrangement, by deed or otherwise, between said Schurtz & Co. and the plaintiff; and shall further find, that the plaintiff, without the authority, assent or approval of the defendant entered into and accepted the arrangement provided for by the deed of trust offered in evidence, such unauthorized acceptance on the part of the plaintiff, released the defendant from the liability sought to be enforced in this action, on account of the notes discounted for Schurtz & Go. by the plaintiff; which have been offered in evidence. 14. That the plaintiff is not entitled to recover in this action, except as to such of the promissory notes (if any) given in evidence, as the jury may find from all the facts and circumstances in evidence, to have been discounted on the faith of the guaranty of the defendant, offered in evidence, and if the jury shall find that none of said notes were discounted on the faith of said guaranty, their verdict must be for the defendant.—(Granted as a more definite explanation of the requirement to recovery ashed in plaintiff ’ s prayer.) And the plaintiff offered the exception following: The plaintiff excepts to the granting of the fourteenth prayer of the defendant, because there is no evidence in the cause that the seven notes offered in evidence, were not discounted on the faith of the guaranty. And because there are no facts or circumstances in evidence in the ■cause, from which the jury can infer that said notes were not discounted on the faith of the guaranty. The Court refused to grant the plaintiff’s prayer, hut modified the same, and granted it as so modified, as follows : 1. If the jury find from the evidence that the guaranty offered in evidence by the plaintiff, dated Feb. 3rd, 1870, was executed by the defendant, and accepted by the plaintiff, and that the seven promissory notes offered in evidence were executed hy Lazear Brothers, as drawers, and were discounted by the plaintiff, as shown by the evidence, and have been held by the plaintiff ever since, and that they were so discounted by the plaintiff, looking to the said guaranty, and on the faith thereof, and that said Lazear Brothers made default in the payment of said notes, and that they still remain unpaid, except to the extent of the payments offered in evidence, then the plaintiff is entitled to recover the amount of said notes, with interest, less the payments thereon as offered in evidence, unless the jury shall find that the note for $5000, offered in evidence was in fact discounted by the plaintiff for the use and benefit of Lazear Brothers, at a rate of interest greater than six per cent., in which case the jury will find for the plaintiff only the sum actually advanced by it on said note. And the plaintiff then offered a second prayer, conforming to the modification of his first prayer by the Court, and as a substitute therefor, which second prayer so substituted the Court granted. The plaintiff’s second prayer was merely a copy of the plaintiff’s first prayer, as modified by the Court. The Court refused all of the defendant’s prayers, except the fourteenth which it “granted as a more definite explanation of the requirement to recovery asked in plaintiff’s prayer,” and rejected the plaintiff’s exception thereto. Whereupon the defendant excepted to the granting of the plaintiff’s first prayer as modified, and of its substituted or second prayer, and to the rejection of the defendant’s prayers as aforesaid, and also to the refusal of the Court to exclude the evidence, by his motion prayed to be excluded from the jury. Seventh Exception.—After the case was argued to the jury by the junior counsel for the plaintiff, and was fully argued and concluded by both counsel for the defendant, and was then, and, up to the adjournment of the Court, further argued in part by the senior counsel for the plaintiff ; upon the meeting of the Court on the succeeding day, and without further proceeding to conclude his argument, the senior counsel for the plaintiff asked leave of the Court to withdraw the instructions theretofore granted to the plaintiff, and to substitute therefor the instruction following : 3. If the jury find from the evidence that the guaranty offered in evidence by the plaintiff, dated Feb. 3rd, 1870, was executed by the defendant and accepted by the plaintiff, and that the seven promissory notes offered in evidence were executed by Lazear Brothers, as drawers, and were discounted by the plaintiff at the times shown by the evidence, and have been held by the plaintiff ever since, and that said Lazear Brothers made default in the payment of said notes, and that they still remain unpaid, except to the extent of the payments offered in evidence, then the plaintiff is entitled to recover the amount of said notes with interest, less the payments thereon as offered in evidence, unless the jury shall find that the note for $5000, offered in evidence, was in fact discounted by the plaintiff for the use and benefit of Lazear Brothers, at a rate of interest greater than six per cent., in which case the jury will find for the plaintiff only the sum actually advanced by it on said note. The Court accepted and granted said prayer, and endorsed thereon: “ This prayer is allowed to be offered and substituted for that offered yesterday by the plaintiff.” The plaintiff also asked of the Court the instruction following : 4. That the Court will reject the fourteenth prayer of ■the defendant granted as an explanation of the plaintiff’s prayer. The Court endorsed thereon: “ The Court having granted the prayer of the plaintiff in substitution for that offered yesterday, rejected the defendant’s fourteenth prayer.” And thereupon the defendant objected to the granting ■ of the two last mentioned prayers of the plaintiff and the substitution of the first thereof for the plaintiff’s prayer theretofore granted; and further insisted as a separate ground of objection, that the said two prayers could not, nor could either of them, properly be entertained or granted at that stage of the case, under the rules of the said Court. But the Court overruled the objections, and granted the two prayers of the plaintiff last offered as aforesaid, and permitted the first of said last offered prayers to be substituted for the plaintiff’s prayer theretofore previously granted, and the latter to be withdrawn by the plaintiff, which was done; and in conformity with the second of said last offered prayers of the plaintiff, the Court further withdrew and excluded from the consideration of the jury the fourteenth prayer of the defendant, theretofore granted, and rejected the same. To all of which rulings of the Court, and to each thereof, the defendant excepted. The verdict and judgment being for the plaintiff, the defendant appealed.