
    BOULWARE vs. THE BANK.
    Where the cashier of a hank, through mistake, cancels a note executed to the bank, it does not affect the right of tho bank to recover tho debt.
    ERROR TO RALLS CIRCUIT COURT.
    Wells & Dryden, for plaintiff.
    1st. Tho note of 180 dollars, being a negotiable security, is shown to have been ill blank when it was endorsed and delivered to tho bank ; and the bank having no notice from either the makers or endorser that it was for the accommodation of the makers, or that the proceeds were to be applied to any particular object, had the right to treat and regard the notes as the property of Levy N. the endorser, and to place die proceeds of the discount to tho credit of the said Levy N., and hold the makers responsible lor 1 lie obligation of the note.
    Bank of Saline vs. Babcock, 21 Wend, Rep. 499.
    2d, Tbo cancellation of a note while in the hands of the- payer or endorser, raises the presump" lion of payment or satisfaction which must be rebutted by tho plaintiff.
    3<l. Tlie assent of Richard Boulware, and all others to tho application by the bank of the proceeds of tho note of 180 dollars, and the twenty-six dollars to the payment of tho note now in suit, is to be presumed as against the bank, until their dissent is shown. Tbo bank by making the application has committed herself, that she was authorized so to do. She at least thereby affirmed she had no directions to make any other appropriation of the same. Site should not be allowed to blow both hot. and cold with tho same breath.
    4th. Tho law will not presume an accommodation endorsement—it is a fact that, must be proved by him who avers it. The presumption is, the payors are the debtors of the payee, as the note by its terms would indícate. The bank has not only not proved in this ease that Levy IjT. endorsed the note of 180 dollars for tile accommodation of tho makers, but she is by her acts at the time of the discount of the same, and by her adherence to those acts for a period of some four years, and by the .continued acquiescence in those acts of the bank, by both the makers and endoiscr, precluding from affirming that it was an accommodation endorsement. Or that she had notice to make any other appropriation of the funds.
    5th. Tho first instruction given for the plaintiff below, is faulty in this, that it assumes the proposition that if tho note of 180 dullars was the property of Richard Boulware, and that he placed the same in bank for tho purpose of renewing a note on which he was a party, the application of said note to any other purpose by the bank, was inoperative and void, without regard to the question whether the bank had or had not notice of the property of the said Richard, and of the uso to which he wished it applied. 21st Wend. Rep. 499. It is also faulty in limiting the jury in their finding to tho evidence of payment by means of the 180 dollar note, and the 26 dollars placed in bank—whereas, the bare cancellation raises the presumption of payment.
    6th. The second instruction of the plaintiff' below is likewise faulty in this, that it contains an abstract proposition of law, without reference to the evidence before the jury—and calculated only to mislead. Donahoc vs. Glasgow &c.; 1st Alo. Rep. 359; Williams vs. Harrison 3 Mo. Rep. 411; Nicholas vs. the State 6th Mo. Rep. 6.
    7th. The third instruction given for the plaintiff is wrong in this, that it was not warranted by the evidence in the cause. It is manifest that the cashier knew what note he was cancelling. If the funds were mis-appropriated, it was not the fault or mistake of the officers of the bank, but because of the omission of Richard Boulware to direct their application, of which he does not complain. There is no evidence that he has not paid, or is ready and willing to pay said note.
    
      8th. The law of the case is correctly presented in the fourth instruction asked by the defend-•a*nts but refused by the court.
    9th, A replecation should either deny, or confess and avoid the matter <4 the plea. The defendant’s fifth plea alleges property in Levy N. in the note of 180 dollars, and the payment of 30 dollars—the plaintiffs replication neither denies nor cunfesscs and avoids the property of Levy N , nor payment of the 30 dollars by Levy N., but alleges that Richard delivered the note of 180 dollars to the bank’s cashier, with the intent and design that the same should be applied to the renewal of the note of 218 dollars {an intention he had not the right to cxeciuc unless lie had property in the note of 180 dollars) and that South, the cashier, contrary to Richard’s design, and by mistake applied said note and 28 dollars and 75 cents deposited in said bank by Richard to the renewal of the note now in suit. Said replecation is irresponsive, and tenders an immaterial issue.
    20th. The defendants 2d, 3d, and 4th pleas, present good and substantial defences to the plaintiff’s action, and the court erred in sustaining the demurrer thereto.
   Judge Ryuand

delivered the opinion of the court.

This was an action of assumpsit brought by the bank of the State of Missouri against John N. Boulware, and Levy N. Boulware, counting as follows:

1st. On a note of $200 at four months, dated July 80th 1842, negotiable and payable at Bank at Palmyra.

2d. For $300, so much money lent, paid out and expended for defendant’s use.

The defendants appeared to the action, and filed six pleas as follows:

1st. Non-assumpsit.

2d. In bar to the first count of the plaintiff’s declaration—that the note named therein fell due February 25th, 1843, and that the plaintiff received in full satisfaction of the same $30 in money, and a note for $180 on William H. Boulware and Richard Boulware.

3d. In bar of said first count, further, that after the said note fell due, William H. Boulware and Richard Boulware made a note for $180 to Levy N. Boulware, who endorsed the same to the plaintiff, and also paid at same time $30 in money in full satisfaction of the said note.

4th. In bar of first count, that said note had been cancelled and destroyed by plaintiff without the consent of the defendants.

5th. In bar of the first count substantially as the second and third pleas mentioned above.

6th. In bar of the said first count, the payment of the sum of two hundred and twenty dollars in full.

The plaintiff filed demurrer to the 2d, 3d, and 4th pleas, which the ■court sustained, and took issues on the 1st and 6th pleas, and filed by leave of the court two replications to the said 5th plea, as follows:

1st. Replication : That the note and money mentioned in said 5th plea as given in satisfaction of the note sued on, was not in fact given to the plaintiff in satisfaction of said note sued on.

2d. Replication : That the said note mentioned in said 5th plea was no satisfaction, because there was no consideration for the giving thereof. These replications the defendants traversed—the cause was then tried on these issues, and the jury found the issues for the plaintiff. The court refused to grant anew trial, and refused to arrest the judgment—and the defendants bring the case before this court by writ of error.

The defence in this case might have well been made under the plea of non-assumpsit; and the defendants should not have been permitted to encumber the record by their long array of pleas. However, the circuit court permitted them to take that course ; for their 5th plea contains nothing more than what had been offered in the 2d and 3d pleas. The demurrer was properly sustained to the 2d, 3d and 4th pleas, and the defendants were permitted, to have the facts which they supposed exonerated them from the payment of a just debt tried by a jury.

The evidence, as presented by the bill of exceptions, shews that the note sued on in this case was cancelled by the cashier of the hank by mistake; that it was never paid to the bank, and that the money mentioned therein is still due the bank.

The evidence fully and most satisfactorily accounts for the cancellation of the note, and places it beyond the power of the defendants to take advantage of that act of the cashier.

The court committed no error in giving the instructions as prayed by the plaintiff, and in refusing the one which it was asked to give for the defendants.

Let the judgment be affirmed.  