Price v. Page

24 Mo. 65 | Mo. | 1856

Scott, Judge,

delivered the opinion of the court.

1. The answer of the defendants having been withdrawn, whether we regard the judgment taken as one by default, or a cognovit actionem relicta verijicatione, the same result follows. (Sellon’s Prac. 373; 5 Wend. 134.) They both are an acknowledgment of the count. A default admits the tra-versable allegations in the declaration. The laws of California regulating the damages on bills of exchange and the rate of interest are alleged to be in existence. They are traversable facts, and were in fact traversed. The withdrawal of the plea, then, was an admission of them.

2. The courts will take notice that the state of Missouri is east of the Rocky mountains. In the case of Peyroux v. Howard & Varion, (7 Pet. 342,) the Supreme Court of the United States remarked that it can not certainly be laid down as a universal or even as a general proposition, that the court can judicially notice matters of fact. Yet it can not be doubted that there are many facts, particularly with regard to geographical positions, of such public notoriety, and the knowledge of which is to be derived from other sources than parol proof, which the court may judicially notice. Thus in the case of the United States v. La Vengeance, (3 Dall. 297,) the court judicially noticed the geographical position of Sandy Hook ; and it may certainly take notice judicially of like notorious facts, as that the bay of New York, for instance, is within the ebb and flow of the tide.

3. As to the damages to be recovered against a drawer on a dishonored bill of exchange, the law seems to be settled, that, upon a foreign bill returned, the drawer pays the damages allowed by the law of the place where the bill was drawn. (2 Kent, 459; Story’s Conf. of Law, 307.) In Allen v. Kemble, (6 Moore P. C. R. 314,) the court say, “ The drawer, by his contract, undertakes that the drawee shall accept, and shall afterwards pay the bill, according to its tenor, at the place and domicil of the drawee, if it be accepted generally. If this contract of the drawer be broken by the drawee, either by nonacceptance or non-payment, the drawer is liable, not where the bill was to be paid by the drawee, but where he (the drawer) made his contract, with the interest, damages and costs, as the law of the country where he contracted may allow. In every case of a bill drawn in one country upon a drawee in another, the intention and agreement are that the bill shall be paid in the country upon which it is drawn. But it is admitted that, if the payment be not so made, the drawer is liable according to the laws of the country where the bill was drawn, and not of the country upon which the bill was drawnTo the same effect is the case of Gibbs v. Fremont, (20 Eng. Law & Eq. 558; Story’s Conf. of Laws, § 315.) After bills are accepted, they are to be governed by-the law of the place where they are payable. The other judges concurring, the judgment is affirmed.