30 Tex. 17 | Tex. | 1867
This is a suit by the payees of a bill of exchange, who are plaintiffs in error, against the executor of the deceased drawer. It is alleged that the bill was drawn on the 2d day of May, 1861, on Henderson, Terry & Co., of Yew Orleans, payable on the 12th of December thereafter, and that it was accepted on the day of the date of the draft; but, when presented for payment at the time it became due, the acceptors refused to pay the same; that the drawer died between the date of drawing and of the maturity of the bill; and that the defendant in error qualified as executor of his estate at the February term, 1866, of the county court
To this petition a general demurrer was sustained in the court below, and final judgment rendered thereon against the plaintiffs. The latter prosecute a writ of error to this court, and assign for error the ruling of the court sustaining the demurrer.
There being no allegation to the contrary, we must treat the draft upon which this suit is founded as a domestic bill of exchange. Heither the place where the draft was drawn, nor where it was accepted, is stated in the petition. The instrument itself, made part of the petition, purports to have been drawn at Hew Orleans; but there is no averment that this place is beyond the limits of Texas. This court has held, that it will not take judicial notice of the division of other States into towns, cities, &c., and that knowledge of the fact that any place is within a different State of the Hnion must be derived from the allegations of the parties or the evidence contained in.the record. (Andrews v. Hoxie, 5 Tex., 185; 4 Tex., 420.)
The rights of the parties to this contract, therefore, must . be ascertained, and their liabilities fixed according to the law of our own State.
By our law, as it existed at the time this bill became due, the liability of the drawer of an accepted draft, dishonored by non-payment, could be fixed by bringing suit thereon against the acceptor before the next term of the district
In case the transaction was mercantile, the liability could be fixed by protest and notice, according to the law merchant, (O. & W. Dig., Art. 97.) Suit against the acceptor, to the first term of the court, was the general rule. The other methods of fixing liability were exceptions. If, therefore, the action should be brought to any other term of the court, the reasons why the general requirement of the statute was departed from should be distinctly averred in the petition. If not so averred, objection thereto could be taken by exception, and in arrest of judgment, or by writ of error. (Elliot v. Wiggins, 16 Tex., 597.)
It is attempted, in the present petition, to show that the liability of the drawer was fixed before the institution of the suit, by protest and notice; but there is no allegation that the contract was between merchant and merchant, their factors or agents. There is a failure, therefore, to bring the case within the exception of the statute allowing the liability to be fixed according to the law merchant.
If the suit can be sustained at all, it must be because it has.been brought within the proper time, and against the parties prescribed by the statute. Admitting that this action has been brought to the first term of the court before which the plaintiffs were bound to institute suit, have they commenced it against the proper parties ? It is not necessary to discuss the question as to whether it is requisite to sue a non-resident acceptor, in order to fix the liability of the drawer of a bill of exchange, because in this case there is no allegation that the acceptors are non-residents. The only averment on this subject is, that the draft was drawn upon Henderson, Terry & Co., of New Orleans. There seems to be no attempt to state their residence at the beginning of the suit; but, if the above allegation can be con
To excuse is therefore shown why the acceptors are not sued in this action, and this suit is against the drawer alone. The express provision of the statute has not been complied with, for the acceptor is the party it requires to be sued, and it was never intended that the liability of the drawer should be fixed by a suit against himself alone.
We have already seen that where the pleader relies upon any of the exceptions or excuses allowed him by the statute for not proceeding according to its provision, he must allege them; and, upon failure to do so, his pleading will "be held bad upon demurrer. This is not a similar case to that provided for in the 4th section of the district court act of 1846, which provides that no person shall be sued as indorser, as guarantor, or as security, unless suit shall have been or is simultaneously commenced against the principal, except in cases where the principal resides beyond the limits of the state, &c.
This statute was construed in the case of Petty v. Cleveland (2 Tex., 406) to have intended to secure to the surety a personal privilege, that of not being sued before his principal, but not to make it a condition upon which the liability of the surety should depend. They say “that it seems' to have been intended merely as a regulation of the remedy, and not of the. right, and, in this view, as properly a
Ho cause of action against the drawer of an accepted bill arises under the law merchant until payment is refused by the acceptor, and due notice thereof given to the drawer. But the statute of 1848, of force when this draft was dishonored, substituted suit against the acceptor to the first term of the district court after dishonor, or to the second term, showing good cause for not suing to the first, in lieu of both the protest and notice of the law merchant. (Durrum v. Hendrick, 4 Tex., 495.)
Hence no cause of action arises under that statute against the drawer until the bill has been dishonored, and suit brought against the acceptor within the time prescribed. A suit brought against the drawer, without fixing his liability by previous or simultaneous proceedings against the acceptor, is, therefore, founded upon no cause of action, and fatally defective on general demurrer.
As this was the condition of the present suit, there was no error in sustaining the demurrer to the petition, and the judgment is
Aeeibmed,