Leigh v. Lightfoot

11 Ala. 935 | Ala. | 1847

COLLIER, C. J.

In the Branch Bank at Decatur v. Rhodes, at this term, the bill on which the defendant was charged as an indorser, was drawn on “Gamble & Murray,” and that copied on the protest was addreseed to “ Gamble & Murrahthe circuit court excluded the protest, because it did not correctly set forth the bill. We said it was certainly the correct practice to copy the bill upon the protest, yet if it were not literally transcribed, but the protest identified it by a description so minute as to leave no ground for mistake, we should be inclined to hesitate before we would pronounce against it. Without however, deciding whether the protest was in itself sufficient to prove the dishonor of the bill, we were of opinion that'it was competent to show by extrinsic proof the identity of the bill indorsed, with that protested ; and consequently the evidence was improperly rejected — the admission of the protest being necessary that the assistant testimony might follow. The case cited is a direct authority that the evidence now drawn in question was rightly admitted.

To entitle the plaintiff in the case before us to recover, it was not indispensable that the bill should have been protested. The declaration alledges that the bill was drawn at Leighton, in Lawrence county, on the drawees at Mobile in this State. This shows that it is an inland bill, which it is only necessary to protest to entitle the holder to the damages consequent upon its dishonor. But if nothing appeared to the contrary, should it not be intended that it was an inland bill, and would not the onus in a proper case devolve upon ■ the party interested, to show that it was payable out of the State where drawn, so as to make a protest indispensable evidence of its dishonor? Besides, are not the courts of this State charged with a knowledge of the fact that Leighton is a village at which there is a post office, and Mobile an incorporated city, and also county — all situate in the State? There can be no question but a notice which described the bill as it was copied on the protest, would be sufficient- to charge the drawers. In Mills v. The United States Bank, 11 Wheat. Rep. 431, it was held that no precise form of notice to the indorser of a promissory note is necessary — that it need not state who is the holder, nor will a mistake as to the date of the note vitiate the notice, if it convey to the party a sufficient knowledge of the particular note which has been dishonored. That the notice need not formally alledge the note was demanded at the place where it was payable — if it states the fact of non-payment, and that the holder looks to the indorser for indemnity, it is sufficient. In Smith v. Whiting, 12 Mass. Rep. 6, a notice given to the indorser of a promissory note payable at a bank was held sufficient, which was given on the day it fell due, although it stated the maturity of the note to have occurred three days before, and although the name of the promisor was mistaken in the notice. True, in that case, it was in evidence that the in-dorser was liable on no other note in bank; but it can hardly be believed that the result would have been otherwise, if this assistant proof had not been made.

Moorman v. The Bank of Alabama, 3 Porter’s Rep. 353, was an action against the second indorser (of which there were three) of a foreign bill. “ Byron ” was the third indor-ser, but in the copy on the protest the name was written “Pyron.” The cashier of the bank which had purchased the bill testified that there was no other bill of the sáme tenor and date, and that it was forwarded to New Orleans, the place of payment, for collection. The court thought it a “legal inference,” that the protest related to the bill in question, and that the notary committed a mistake in placing the name of Pyron for Byron on the protest; that the defendant being an indorser prior in order to Byron, could not be prejudiced by the mistake, even if it discharged the latter. Accordingly, upon a demurrer to evidence, it was held the plaintiff was entitled to judgment. There can .be no doubt, but the relative position of the parties’ names on the bill would have induced the same conclusion, without the testimony of the cashier.

We have seen that the protest was admissible evidence, that it might have been assisted by parol testimony if necessary, that a notice as explicit as the protest would be sufficient to advise the drawers of the dishonor of the bill, and that being an inland bill; it was not indispensable to entitle the holder to recover the amount of it with interest, that it should have been protested. It remains now to consider the charge to the jury, which is thus stated in the bill of exceptions, “ that the bill of exchange which had been read to them, and the certificate of protest thus admitted, was testimony for them to consider as evidence of the protest of said bill, and notice to the defendant.” The statute makes the affirmation by a notary in the protest of an inland bill, &c. that notice of its dishonor had been sent by mail to the persons entitled to it, evidence of the fact; and the additional proof that the post office to which it was transmitted, was that, at which the drawers usually received their letters, was sufficient to charge them, if the bill and protest was evidence to be considered by the jury. [2 Stew. & P. Rep. 428.]

We think there can be no doubt but it was competent for the jury to weigh this evidence and determine upon its effect: this is what the court instructed them was ,their appropriate duty. They were not informed that it was sufficient in itself to authorize them to find a verdict for the plaintiff. If the defendant had desired a charge upon this point, he should have prayed the court to give it. The omission to instruct a jury upon all the legal questions suggested by the proof in a cause is not a ground for the reversal of a judgment rendered on their verdict; it is enough if the court does not mistake the law, or lay it down in such manner as necessarily to mislead them. [1 Ala. Rep. N. S. 18-607; 2 Id. 694; 4 Id. 493.] In The State v. Brinyea, 5 Ala. Rep. 241, it was said, if a charge is considered objectionable, either on account of its obscurity, or tendency to mislead a jury, the party against whom it is to operate should ask an explanation of the court, otherwise an appellate court will not reverse the judgment for either of these objections to the charge, if it is substantially correct. And in Knapp v. McBride & Norman, 7 Ala. Rep. 19, we said, “ There can be no question but a party has the right to require the opinion of the court upon any point of law that is pertinent to the issue, and the refusal of the court to give such an opinion would be available on error. But the mere neglect or omission of the judge to instruct the jury on some material point, though it might sometimes furnish just ground for anew trial, will not warrant a reversal of the judgment.” We need not inquire whether the variance between the bill declared on and that copied on the protest is not so unimportant as to have warranted the jury in considering that the bill in suit was that to which the protest applied; for however this may be, we have seen that there is no error in the ruling of the circuit court. This view relieves us from the necessity of considering what evidence would have been sufficient to support the common .counts. We have but to add, that the judgment is affirmed.