Evans v. Bridges

4 Port. 348 | Ala. | 1837

COLLIER, J.

— Three points have been raised, by the plaintiff in this case.

1st. That the declaration, being entitled of a term subsequent to the rendition of judgment by the Circuit Court, there was no warrant for the judgment.

2d. That the verdict and judgment are for a sum, larger than the cause of action, disclosed in the record, authorised.

3d. That, though a bill of exchange be protested for non-acceptance, and notice thereof given to the drawer, yet the holder is not authorised to maintain an action, unless payment of the bill is demanded at maturity, and notice of non-payment duly given.

From the record, it appears that the plaintiff, on the seventeenth of December, eighteen hundred and thirty-three, drew on Mr. George M. Rives, at Mobile, in favor of the defendant, at ninety days’ date, fpr f/Ljc hundred and ninety dollars; which bill was protested, for non-acceptance, on. the twenty-sixth of the same month, and notice thereof duly given to the drawer.

. At the term of the Circuit Court of Wilcox County, holden in May, eighteen hundred and thirty-five, a judgment was.rendered on verdict, for seven hundred and thirty-three dollars and seventy-four cents; a demurrer to the declaration having been first overruled.

1. The first point we think untenable. — It is not essential to a declaration, that it should be entitled of any particular term ; and no matter what be its caption, or whether it have any, — if it discloses a good cause of action, it well subserves its appropriate office. It is certainly .proper, that the declaration should be in Court before judgment, to authorise its rendition ; and where the reverse appears, the judgment .should be reversed. The entry of the judgment, in this case, sufficiently advises us, that the declaration was regularly filed, in reciting, that, the parties came, by their atlornies, and the demurrer to the declaration, having been argued, &c. was overruled.

2. In respect to the second point, it has been determined by this Court, that, where a judgment following a verdict, is rendered for a sum larger than is warranted by the liability sued on, it cannot be reversed on error. The remedy of the party aggrieved, in such case, is an application for new trial.— See Moore vs Coolidge.^*

3, The undertaking of the parties, drawing and endorsing a bill of exchange, (such as the one before us,) when it is thrown into circulation, is, that the drawee shall both accept and pay it. This engagement of the drawer and endorsers, does not oblige the holder to present it for acceptance. If, however, he does present it, and acceptance is refused, it is considered as dishonored, and due notice must be given to all prior parties whom it is desired to charge,^* Bank of Washington vs. Triplett, et al.^†—Townsley vs. Sumrall.^‡ An acceptance being once refused, the holder need not present the bill for payment at the time appointed on its face for its maturity : (he liability of the parties is already fixed by the nonacceptance and notice.—Miller vs. Hackley.^§ Nor need the holder wait until the time for payment expires; his right of action is complete by the non-acceptance, protest, and notice.'—Wallace vs. Agry^||— Winthrop vs. Pepoon^¶—Milford vs. Mayor^**—Balling alls vs. Gloster.^††

These rules, it may be remarked, do not grow out of the Common Law, strictly so called, hut result from commercial law—to -which, as securities for money, bills of exchange owe their origin ; and to the control of which, they are peculiarly subject.

By the contract arising out of the acceptance of a bill, the acceptor stipulates unconditionally to pay the hill at its maturity. By the act of drawing and endorsing, the drawer and endorsers stipulate, first, that the drawee shall accept the bill on presentment; secondly, that he shall pay it at maturity : and if he does not, and they receive due notice thereof, that they will make good his default. Such being the character of the undertaking, it follo ws, that ii the holder choose to avail himself of the first stipulation, he may have his action for a breach.

Judgment must he affirmed.

* i Porter,

* 3 Kent’s Com. 54.

† 1 Pet J25.

‡ 2 ib. Í78.

§ 5JohnsRs 375.

|| 14 Mason, 338.

¶ 1 Bay, 46S

** Done.5&

†† 3 Ka'st.R 48]; 3KenS Com. 64.