which the plaintiffs' counsel made, or, indeed, that he did object. A party seeking a new trial, on account of an erroneous exclusion of evidence, must show that he may have been injured by the ruling. As the precise fact sought to be proved was already in evidence, no prejudice could result from the referee's refusing to have it repeated. These views lead to the affirmance of the judgment of the Court of Common Pleas.

All the judges concurring,

Judgment affirmed.

SAMUEL L. FOWLER, Plaintiff in Error, v. HARRIS BRANTLY et al., Defendants in Error.

(14 Peters, 318. Supreme Court of the United States, January, 1840.)

What sufficient to put the holder upon inquiry.-A note made payable to the cashier of a bank, and drawn within a peculiar form to be within the usages of the bank, was sent to an agent to procure a discount at the bank. The note was rejected, and marked in pencil, with a mark employed by the bank to indicate that it had been offered and refused. The agent then sold the note and applied the proceeds to his own use. Held, that the note on its face was sufficient to put the holder upon inquiry, and that he could not recover though he had no knowledge of the fraud.

THE case is stated in the opinion of the court.

CATRON, J. This is an action of assumpsit by the assignee of a note against the makers. The questions of law arising in this cause depend on the construction of a note of hand, in the following words: :

"SELMA, Dallas County, Alabama, March 1, 1836. "Eleven months after date, we, Harris Brantly, Peyton S. Graves, and Hugh Ferguson, jointly and severally promise to pay Andrew Armstrong, cashier, or bearer, $2,000, value

received, negotiable and payable at the Branch Bank of the

The note had on it the two indorsements of Diego M'Voy and William D. Primrose; and that of Taulmin, Hazard, & Co. was stricken out. On the face of the note there was, in

pencil, the figures "169."

The defendants, the three makers, introduced evidence to prove that the note, in its present form (except the indorsements), was sent by one of the makers to M'Voy, who was his factor in Mobile, to be offered for discount in the Branch Bank of the State, in that city, as an accommodation note; the proceeds of which were to be forwarded to said maker. That the note was offered for discount and rejected. The factor then proposed to raise money on the note for his own use, without the knowledge of the makers, and intended to conceal the appropriation of the note from them. The first person to whom he offered to sell the note deemed the attempt a fraud, and refused to purchase. M'Voy then indorsed and transferred the note to Primrose for $1200, communicating to him it had been offered for discount at the bank and rejected.

Taulmin, Hazard, & Co. held a note for $3,250, on Black, indorsed by Vail & Dade, and by Primrose, and which was past due; to discharge which, in part, Primrose transferred the note in controversy to Taulmin, Hazard, & Co.; and Taulmin, Hazard, & Co., indorsed the same before its maturity, to the plaintiff, Fowler, and received credit on

their account; they being largely indebted to him at the time.

The leading feature in the cause, involving the principle on which it turns, is this: the note was in the form prescribed by the bank to those who desired accommodations at it; which form was not in use before its adoption there. The memorandum on the left-hand side of the note, and signed by the drawers, was designed to show the officers of the bank to whose credit the money was to be placed, should the note be discounted; and by the usages of the bank, no other person than the one thus named could receive the money.

Primrose testified, he knew from the pencil-mark on the face of the note, it had been offered for discount and refused, when he purchased it. The cashier proved the pencil-mark was made, according to the usage of the bank, on all notes offered for discount and refused.

To a part of the first instruction—that held if the plaintiff took the note in payment of a pre-existing debt, due to him from Taulmin, Hazard, & Co., then the jury ought to find for the defendants - exception is taken; and the court refused to instruct the jury that, if the plaintiff took the note fairly in payment of a debt due to him, before its maturity, without notice of the purpose for which M’Voy had held it, then he was entitled to recover.

And also refused to instruct, if the jury believed plaintiff took the note bona fide in payment of a previous debt, that he had no notice of any fraud, and there were no circumstances to put him upon an inquiry into any fraud committed on the part of M'Voy, he was entitled to recover.

There were other instructions asked and refused; but, as they are in effect the same as those recited, an answer to which will cover the whole case, they need not be further noticed.

The known customs of the bank, and its ordinary modes of transacting business, including the prescribed form of notes

offered for discount, were matters of proof, and entered into the contract; and the parties to it must be understood as having governed themselves by such customs and modes of doing business; and this whether they had actual knowledge of them, or not; and it was especially the duty of all those dealing for the paper in question to ascertain them if unknown. Such is the established doctrine of this court, as laid down in Renner v. The Bank of Columbia, 9 Wheat. 581; Mills v. The Bank of the United States, 11 Wheat. 431; and the Bank of Washington v. Triplett and Neale, 1 Peters, 32, 33.

The note sued on is peculiar in its form; it was made for the purposes of discount, and only intended for negotiation at the bank, and not for circulation out of it. The pencilmark on its face when sold was common to all rejected paper, and was put there by the officers of the bank as evidence of the fact that it had been offered and rejected; and those dealing for it, with the mark on its face, must be presumed to have had knowledge what it imported, as the slightest inquiry would have ascertained its meaning. These were the legal presumptions attached to the contract when the plaintiff purchased it; and the explanatory evidence to prove the customs of the bank was introduced to enlighten the court and jury in regard to the rules governing the transaction, and furnishing the law of the case; and which the plaintiff, when he purchased the paper, is presumed to have known and understood, as the court knew and understood it after it was proved on the trial.

This was the case, made up of law and fact, on which the court was asked to charge the jury; and not the abstract proposition whether, on a proper construction of the statutes of Alabama, negotiable paper, payable in bank, purchased bona fide, and without notice of an existing infirmity, but taken in discharge of a pre-existing debt, carried the infirmity with it into the hands of the purchaser; for the reason

that the mode of payment was not in the usual course of trade.

A note overdue, or bill dishonored, is a circumstance of suspicion, to put those dealing for it afterwards on their guard; and in whose hands it is open to the same defences it was in the hands of the holder when it fell due. 13 Peters, 79. After maturity, such paper cannot be negotiable "in the due course of trade," although still assignable.

So the paper before us carried on its face circumstances of suspicion, so palpable as to put those dealing for it, before maturity, on their guard; and as to require at their hands strict inquiry into the title of those through whose hands it had passed. Failing to be thus diligent, they must abide by the misfortune their negligence imposed, and stand in the condition of M'Voy.

As between him and the defendants, there was no contract or liability on their part; nor as bearer of the note, could he lawfully pass it off in the due course of trade, so as to communicate a better title to another; the face of the paper betraying its character and purposes, and M'Voy's want of authority.

All the rulings of the court below must be referred to this paper, and to the special case made by the proofs. Any instruction asked which cannot be given to the whole extent asked, may be simply refused; or it may be modified at the discretion of the court. No instruction was asked that could have been lawfully given; to every one the court could well say, and did in substance say, that under no circumstances could a purchase of this note be made by the plaintiff, from Taulmin, Hazard, & Co., so as to exempt it, in the hands of the assignee, from the infirmity it was subject to in the hands of M'Voy.

And in regard to the last part of the first instruction, where the jury is in substance told, that if they believed the note was taken in payment of a pre-existing debt, due to plaintiff,