12 Mo. 395 | Mo. | 1849
delivered the opinion of the court.
It appears that on the day for which this case was set for trial i'n the court of comm.pn pleas, the defendant presented to the court a petition for a discovery of testimony from the plaintiffs. The object of the bill of discovery was- to establish that the bill sued on had been drawn by Beasley in bud faith to pay a debt due the. plaintiffs ; that he had no authority to, draw upon the defendants except to meet liabilities incurred upon a special agreement between Beasley and' the defendant for the purchase of tobacco; that the bill was accepted by James Glasgow, as the agent of defendant, under the belief that the bill was drawn to meet such liabilities for tobacco, and that the plaintiffs were aware of these facts. To excuse his delay in presenting this petition, the defendant stated that he had mistaken the court in which the action was pending ; that he had suits in both the circuit court and common pleas, and supposed the suit to be depending in the former, whose sessions would not commence until some time after this application. The court of common pleas refused to grant the discovery sought, on the ground that the application came too late, and the defendant took his. exception.
The statute which authorises bills of discovery in suits at law does not prescribe the time within which they shall be presented, nor does it appear that the court of common pleas in S-t. Lo.uis, had any rule upon
The instructions which were refused, present the question whether.' the erased endorsements oa the bill ought to-h-ave prevented a recovery in the present action..
The case of Davis vs. Christy (8 Mo. Rep. 569) is a decision upon, our statute concerning bonds and notes. The conflict of authority in relation to the right of a holder of a negotiable note to strike out subsequent endorsements- in full, is noticed in that case, and' no opinion is-given in relation to that question. The case of Dugan vs. U. States, (3 Wheat. 172) is in favor of the authority of the holder to strike out such endorsements, whether in. blank or in full, and- whether made for-value or merely for collection. The language of the court in that case is quite decisive. “After an examination of the cases on this subject,’5 says Judge Livingston, “which cannot all be reconciled, the court is of
The reasons which influenced the construction given by this court to the assignment of bonds and notes in Davis vs. Christy, have certainly no application to the the transfer of bills of exchange. The right of set-off, 'gdhich our statute provided for in theformer class of instruments, the assertion of which might have been embarrassed, if a cancellation of the assignment were permitted to destroy the title of the assignee and re-invest it in the assignor without any formal re-assignment, has no existence in negotiable paper. Nor is its easy to imagine any real inconvenience which is likely to result from the establishment of the broad position taken by the Supreme Court of the United States in Dugan vs. U. States. The suggestion of Judge Parker in Nevins vs. Degrand, (15 Mass. Rep. 436) that such a doctrine might enable a malafide holder, or one who gets possession of the bill by accident to demand payment can scarcely have any weight in determining whether, in the absence of all proof calculated to throw any suspicion of this character, the presumption may not be safely indulged that the holder came honestly by the bill. It seems to be agreed, that when the endorsement is in blank, or where it is merely for collection, the endorsee having acquired no actual interest in the bill, the endorser who subsequently gets possession of the bill may disregard the names of the endorsees to whom the transfer has been made, and no formal re-endorsement is necessary to invest him with the title. We see no objection to extending this principle to endorsements for value, provided nothing is shown tending to throw any suspicion upon the transaction.
An objection was taken at the trial to the admissibility of an affidavit taken under our statute of February 11, 1847, upon the ground that a justice of the peace in this State has no authority under that act to take the affidavit. This act provides, that affidavits taken under it, may be taken before any court of record within the U. States, &c., and this provision is supposed to exclude the power of justices of the peace within this State. The law, as it stood in 1845, (R. C. p. 762) has
Judgment affirmed»