
    UNITED STATES NAT. BANK OF NEW YORK v. FIRST NAT. BANK OF LITTLE ROCK et al.
    (Circuit Court of Appeals, Eighth Circuit.
    January 28, 1895.)
    No. 507.
    Appeal — Motion for, Rehearing — Facts not Considered — Mistake op Counsel.
    In Error to the Circuit Court of the United- States for the Eastern District of Arkansas.
    This was an action by the United States National Bank of New York against the First National Bank of Little Rock, Ark., and S. R. Cockrill, its receiver, upon five notes indorsed by the Little Rock Bank. At tlie trial a verdict was directed for the defendants. . On writ of error sued out by plaintiff, the judgment entered by the circuit court was reversed, and the case remanded, with directions to award a new trial. 64 Fed. 985. Defendants move for a rehearing.
    William 0. Batcliffe, for plaintiff in error.
    Sterling It. Cockrill, for defendants in error.
    Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
   PER CURIAM.

A, motion for a rehearing has been filed in this case. In support of the motion it is urged that the defendants in error asked an instruction in the nature of a demurrer to the testimony, which raised the question of the adequacy of the proof offered to fix the liability of tin; defendant bank as an indorser, and that this court in its decision overlooked the fact that such an instruction had been asked, and therefore erred in holding that the defendant bank waived or abandoned the defense of a want of proper demand and notice. It is only necessary to say that counsel are themselves mistaken in supposing that the record lodged in this court shows that such an instruction was asked. The record shows that at the conclusion of all of the evidence the plaintiff in error asked 10 instructions, all of which were refused, and that “the court, of its own motion,” gave the instruction which is quoted in full in the opinion. 64 Fed. 985. It nowhere appears in the record that the defendant bank asked any instructions, or that it attempted, by instructions or otherwise, to avail itself of the defense that a proper demand was not made upon the makers of the several notes in suit to fix its liability as an indorser. That is a defense we think, that was neither considered nor determined by the iria-1 court. We must adhere, therefore, to the conclusion announced in the opinion that the supposed defect in the proceedings taken to fix the liability of the defendant bank as an in-dorser is, upon the record now before us, insufficient to support the judgment.

The other points urged in support of the motion for a rehearing were sufficiently considered in the opinion now on file, and we find nothing in the argument of counsel that is adequate to alter the views heretofore expressed.  