
    MORGAN v. REINTZEL.
    
      Present....All the Judges.
    
    In a suit against the maker of a promissory note, by an indorsor who Has been obliged to take it up, the Plaintiff must produce the . note upon the trial.
    The payment of the mouey by the indorser after protest, is a good consideration for an assumpsit on the part of the maker-to pay the amount of the note with costs of protest-The maker of a promissory note, payable to order, ¡s, tom^ot^merl chants, ítóbie -amoMtnof the note and costs of protest to -who has been obliged to take
    
      . ERROR'to the Circuit Court for the district of Columbia sitting in Washington, In ah action of assumpsit brought by Reintzel against Morgan upon a promissory- note made by Morgan payable to Reintzel, or order.
    The declaration, contained three counts: 1st. Upon the promissory note in the usual form under the statute of Anne-; 2d. For money paid, laid out, and expended; and 3d. The following special count, viz.:
    « And whereas also afterwards, to wit, on,” &c. «the said William Morgan, according to the custom and usage of merchants, made his certain note in writing, commonly called a promissory note, his own proper hand being thereto subscribed, bearing date on the day and year aforesaid, (August 9th, 1809) by which said note the said William Morgan, sixty days after llie date thereof, promised to pay to the said Anthony Reintzel, or order, five hundred dollars, without offsett, value received ; and then and there delivered the said note, to the said Anthony Reintzel; and the said Anthony Reinizel, to whom, or to whose order, the payment of the said sum of money, mentioned in the said note, was to made, before the payment thereof or any part there-0f, and before the time appointed by the said note for the payment thereof, that is to say, on the day and year last aforesaid, at the county aforesaid, indorsed the said note, his own proper hand.writing being thereto subscribed; by which said indorsement the said Anthony Reintzel ordered and appointed the contents of the said note to be paid to the president; directors and company of the bank of the United States, and then there delivered the said note, so-indorsed, to the said president,, directors, and company of the bank °f the United States, of which said indorsement, so made on the said note, the said W dliam Morgan, afterwards, to wit, on the day and year aforesaid, had notice; by reason whereof and also by force of the státute in such case made and provided, the said William Morgan became liable for, and chargeable to pay to the said president, directors and company of the bank of the United States, the said sum of money mentioned in the said note, according to the tenor and effect thereof, and in consideration thereof assumed upon himself so to do. And the said Anthony Reintzel avers that the said William Morgan, although afterwards, to wit, on the 8th day of October, in the year eighteen hundred and nine, at the county aforesaid, he, the said William Morgan, was called upon by the said president, directors and company of the bank of the United States and solemnly Required to pay the sum of money in the said note mentioned, refused to pay.the same; whereupon afterwards, upon the day and year last aforesaid the said president, directors and company of the bank of the United States, having mad^e no order concerning the payment thereof, protested the said note at the coimty aforesaid, according to the said usage and custom of merchánts upon Bitch non-payment; by reasorf whereof the said An-; thony Rciqtzcl, according to the usage and custom of merchants became liable to pay to -thé said president, directors and company of the bank pf the United States, the contents of the said note together with the interest and damage which 'should aceche from the;'delay of payment thereof, and being so liable, afterwards, to wit, on the day and year, last aforesaid at the county aforesaid” (did) « pay to the said president, directors and company, the contents of the said note and the costs of protest thereon, whereof the said William Morgan afterwards, to wit, on the day and year last said at the county aforesaid, had notice; by reason of the premises, and by force of the statute and usage and custom of merchants* the said William Morgan became liable to pay to the said Anthony Reintzei the said sum of money in the said note mentioned and the said costs of protest, and being, so liable afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, upon himself assumed and-to the said Anthony Reintzei then and there faithfully promised to pay the same when he should be thereunto afterwards required; and which said costs of protest and the said sum of money in the said note*mentioned amount unto the sum of five hundred and two dollars and twenty-eight cents current money, whereof the said William Morgan afterwards, to wit, on the day and year last aforesaid at the county aforesaid had notice.”
    After a general verdict for the Plaintiff in the Court below, upon the issue of non assumpsit to all the counts, the Defendant moved in arrest of judgment, and assigned'as a reason therefor, that the last count in the declaration was bad. The Court, however, overruled the motion and rendered judgment upon the verdict.
    The Defendant took out a writ of error; and the cause was now submitted to this Court by F. S. Key for Plaintiff in error, and Mors ecu for Defendant, without argument.
    
      March 13th....
    
    
      All the Judges being present,
   Marshall, Ch. J.

after stating the case, observed that the Court could see no error in the judgment.

The payment of the money by the Plaintiff, under the circumstances stated in the count, was a sufficient consideration for the assumpsit.

The principal objection was that the count ought to have been founded upon the mote, so as to oblige the Plaintiff to produce it on the trial. But it states that the note was paid by the Plaintiff: and the Court5' thinks that the note must have been produced upon the trial.

Judgment affirmed,.  