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V 139 273 382 Vaupell v. Woodward, . 494 298 139

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Waddell, De Kay v.

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United Lutheran Churches, &c., Cam.

meyer v.

186 Yelverton v. Shelden,

481

CASES IN CHANCER Y.

BROOKLYN BANK v. WARING and others.

W. was the accommodation indorser of his son N., on a note to B., payable at the

complainant's bank, on the 31st July. By an error of their clerk the note when left for collection, was entered as due 31st August, and was not presented for payment at its maturity, nor any notice of its non-payment given. N. was aware of there being a mistake at the bank as to the time when the note would fall dae; but to provide for its renewal in case it should be properly presented, he prepared a new note for the same amount dated 31st July, and his check for the discount, and left the same with his partner who was the notary of the bank, to obtain his father's indorsement on the note, and renew the old note if it were presented on that day. W. on the 31st July called on the notary and indorsed the new note, but nothing was done with it. B. claimed the amount from the bank on the neglect to charge the indorser, and the bank paid B., and then sued W. on the old note. W. defended the suit. Some months after, two large mortgages of W. to the bank, on distinct parcels of land, fell due, and W. desired an extension of payment. The result was an agreement, by which W. paid about one-third of N.'s note, and executed a new mortgage to the bank for the amount of the two former, payable at a future day, and embracing both par.

cels of laud. Held, that the mortgage was not usurious. A doubtful claim prosecuted in good faith, is a good consideration for a promise

made on compromising and settling it; and the promise cannot be impaired by

showing that the claim was invalid. And where an indorser, discharged by the laches of the holder, with full knowledge

of the facts, yields to the claim of the holder and promises to pay the note, an

action on the note can be maintained on such promise. It seems, that under the circumstances W. was liable as indorser, independent of the new agreement.

Decided in 1843.

The bill in this cause was filed to foreclose a mortgage of $22,000, dated August 24, 1838, executed by Waring to the complainants, on lands in Brooklyn. The defence was, that $1000 VOL. II.

1

Brooklyn Bank v. Waring.

was exacted from W., for the forbearance of the debt, on executing the mortgage, and that it was therefore usurious.

It appeared that the complainants, on receiving this security, cancelled two mortgages which they held against W., one for $15,000, payable March 16, 1838, and the other for $7000, on different property, due about the same time. The new mortgage included all the lands which were described in those given up.

The facts proved respecting the $1000, were these. In November, 1836, N. a son of the mortgagor, gave a note for $3150, to Mott Bedell, payable in six months, at the Brooklyn Bank, which the mortgagor indorsed for his accommodation. On the 29th of May, 1837, this note was renewed, by a like indorsed note at sixty days; which was afterwards lodged by Bedell at the bank for collection. By an error of one of the clerks in the bank, the note was entered as falling due on the 31st of August instead of July, and a bank notice of its maturing on that day was sent to N. On the 31st of July N. was absent in the country, but a few days prior when about to depart, he drew and signed a new note for $3150, payable to his father, and dated 31st July, and left it together with his bank notice, and his blank check, with his partner, Mr. Covert, with instructions to obtain his father's indorsement, and with it to renew the former note if it fell due while he was absent, filling the blank check with the discount. He further instructed Mr. Covert, if he heard nothing from the note on the 31st July, to give himself no further trouble about it. Mr. Covert was the notary of the bank, into whose hands the current note would regularly come, if it were demanded and protested. W. himself called on Mr. Covert, on the 31st July a little after noon, inquired for the note intended for renewal, and indorsed it. The old note was not presented in form for payment, and no notice of its non-payment was given to W.and therefore Mr. Covert returned the renewal note and check to N. At this time N. was insolvent, and from the testimony it was inferrible that his father was aware of his situation. The error at the bank was discovered ten or twelve days after the note should have been protested. Bedell claimed the amount from the bank, on the ground of their default in charging the indorser ;

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