Billingsley v. State Bank

3 Ind. 375 | Ind. | 1852

Blackford, J.

In March, 1850, The State Bank of Indiana, as indorsee of a bill of exchange for 2,000 dollars, brought an action of assumpsit against John Billingsley, as indorser. The declaration, which was filed at the April term, 1850, alleges that the bill was drawn at Lawrenceburgh, in this state, on the 1st of February, 1849, by one Davis W. Cheek on one Henry Raymond, New Orleans; that it was payable, four months after date, to the order of One William V. Cheek, at the Mechanics' and Traders’ Bank, in New Orleans, and was indorsed by the payee, the defendant, and others. The declaration also alleges the due presentment of the bill, its non-payment and protest, and a due notice of the dishonor to the defendant.

There was a plea in abatement as follows: That theretofore, to-wit, at the October term, 1849, of the Dearborn Circuit Court, the plaintiff had sued one Jacob Hays as indorser of the same bill of exchange, in which suit the said Hays had obtained judgment; that the plaintiff had appealed from that judgment to the Supreme Court, where the suit was then pending.

That plea was demurred to and the demurrer sustained.

The defendant then pleaded the general issue. He also moved the Court to suppress the deposition of one H. B. Cenas, but the motion was overruled. The cause was afterwards tried, and a verdict and judgment rendered for the plaintiff.

The first objection made to the judgment is, that the demurrer to the plea in abatement should have been overruled.

It is not contended but that, by the law-merchant, the holder of a bill may proceed at the same time, in separate suits, against each of the parties who may be liable, until the debt is satisfied; but the defendant supposes that this rule of the law-merchant is so changed by our statute as to authorize his plea in abatement. The statute enacts that no holder of a bill of exchange shall be permitted, at any term of the Circuit Court, to institute more than one suit upon any one such bill. R. S.,p. 697. We think it is plain that this provision does not apply to the present case. The statute prohibits the institution of separate suits on a bill of exchange at the same term of the Court. But the plea before us does not allege that the suit against Hays was commenced at the same term with the suit against Billingsley. On the contrary, the plea shows that the suits were commenced at different terms— the suit against Hays at the October term, 1849, and that against Billingsley at the April term, 1850. The demurrer, therefore, was rightly sustained.

The next objection is, that the deposition of Cenas should have been suppressed.

Cenas was the notary who protested the bill of exchange. His deposition tends to show the dishonor of the bill, the certificate and notarial seal attached to the protest to be genuine, and the notices of the dishonor to have been regularly given to the drawer and indorsers.

It is not material whether this deposition should have been suppressed or not, as the evidence was amply sufficient without it to sustain the suit.

The plaintiff gave in evidence the bill of exchange, the indorsements thereon, and the protest, as described in the declaration. The defendant objected to the protest, on the ground that the notarial seal was not affixed to it until several months after the protest had been signed; but the objection was correctly overruled. The law appears to be settled that though the bill ought to be noted for non-payment on the day of the refusal to pay, still the protest may be drawn up at any time before the trial, and antedated accordingly. Byles on Bills, 190. — Chitty on Bills, 527-’8. In the case before us, the protest was written and signed on the day the payment was refused, and the notarial seal was affixed to the protest by the notary previously to the trial. It is clear, therefore, that the objection to the protest, that it was not completed in time, was without foundation. The case of Bailey v. Dozier, 6 Howard’s Sup. Court U. S. Rep. 23, cited by the plaintiff, sustains this decision. It was also proved that the plaintiff gave due notice to the defendant of the dishonor of the bill. There was proof also that the plaintiff gave for the bill the full amount for which it was drawn, less the legal interest for the time the bill had to run, and one per cent, as the rate of exchange, which was admitted to be the customary rate on such bills.

This was the plaintiff’s evidence; and it showed, prima facie, that he was entitled to recover.

The defense relied on was, that the transaction was, under the appearance of a purchase of a bill of exchange, a mere loan of money; and that the loan, on account of the one per cent, taken as exchange, was usurious and void.

The facts, as to this part of the case, appear to be, that William V. Check, the payee of the bill, had become liable to the plaintiff for a certain sum of money; that the plaintiff, in order to obtain .payment of that debt, purchased the bill of said William V. Cheek, at a fair price, and applied the proceeds, with his consent, to such payment; and that the plaintiff, when the bill was purchased, had good reason to believe that the bill would be paid at New Orleans when it should fall due.

A. Brower, for the plaintiff. P. L. Spooner, for the defendant.

It appears to us, therefore, that the transaction in question was not a loan, but a fair purchase of a bill of exchange.

In the course of the trial, the defendant offered to prove the rate at which the plaintiff, when said bill was bought, was selling bills on New Orleans payable at sight; and also to prove that, at the same time, the plaintiff knew that the drawee, Raymond, lived in this state, and was not likely to have funds in New Orleans. This evidence was held not to be admissible. We need only remark, with regard to this evidence, that, had it been admitted, the verdict would still have been clearly right.

The Circuit Court held, in this case, that if the bank make a usurious loan to any one, the whole contract is void. We are of opinion, however, that the statute of 1843, which declares usurious contracts valid as to the principal debt, applies as well to loans made by the bank as to those made by individuals. R. S. 1843, p. 581.

The defendant objects to some instructions given to the jury. But as we have no doubt, from the evidence, but that the verdict is right, the instructions cannot affect the case.

Per Curiam.

The judgment is affirmed, with 6 per cent. damages and costs.