Riggin v. Collier, 6 Mo. 568

Riggin v. Collier

6 Mo. 568 | Mo. | 1840

Opinion of the Court by

Napton Judge. McGirk Judge not sitting.

Collier and Pettus brought suit against Riggin in the circuit court of St. Louis, upon a bill of exchange, drawn by John D. James upon John E. James at New Orleans, for six thousand dollars, in favor of Thomas J. Payne, who endorsed to John Riggin, -who endorsed to plaintiffs below. The declaration contained a count upon the bill, describing it as payable at New Orleans, and protested &c. for non payment, the common counts were also added.

Oyer was craved of the bill, and a special demurrer to the first count, and non assumpsit pleaded to the other counts. The plaintiffs then asked leave to amend, by ehangeing the name of Thomas I). Payne to Thomas J. Payne, which was granted. The defendant took a bill of exceptions to the action of the court in granting leave to amend, and the cause was continued until the next term, defendant having withdrawn his Oyer and demurrer, and pleaded the general issue to the first count. At the next term, the cause was tried and a verdict given for plaintiff for seven thousand seven hundred and ten dollars sixteen cents; and judgment *571entered according. The defendant moved for a new trial, on the ground that the verdict was against law and evidence, and moved in arrest of judgment: 1st, because the declaration was not such an one as judgment could be rendered upon in this cause.

2d. Because the whole proceedings are irregular, erroneous and informal.

3d. Because the writ, declaration, amendments, and judgment are irregular, erroneous and informal. Both motions were overruled, exceptions were taken, and the case is brought here by appeal.

From the bill of exceptions it appears, that the bill was given in evidence, with the necessary proof of partnership endorsement, dishonor, and protest, and notice. Below the endorsement was an endorsement in full which had been erased. It was in these words, “Pay Edw. Duplessis esqr. cash, or order, W. C. Anderson agent.” It was proved, that said bill was at its date sold to the Commercial Bank of Cincinnati, the endorsements of Payne and the defendant being in Bank; that William C. Anderson, the agent of said Bank, endorsed it to Duplessis, who was cashier of a bank at New Orleans, solely for collection, and sent it down to him for that purpose; that when it was dishonored, it was sent back to Anderson by Duplessis, and the Commercial Bank after-wards sold and delivered it to plaintiffs. The endorsement in full to Duplessis was stricken out, and the endorsements to Payne & Riggin were filled up afterwards. It was proved that the plaintiffs had no interest in the bill until it was sold to them as above stated.

Instructions were asked by the defendant, calling upon the court to declare that no recovery could be had, if the endorsement by Anderson to Duplessis was an endorsement in full, while the oher endorsements were in blank, which instructions the court refused to give.

The points deemed material, are

1, The amendment;

2, The instructions; and

3, The damages given.

1. The power of amending is expressly given by the *572Statute, (Rev. Co. 35 p. 467;) and the only objection to the exercise of the power in this case, seems to be the manner in which the amendment was made. The declaration as amended only appears on the record before this court, the amendment having been made by an alteration of one letter into another. The bill of exceptions does not in terms state, that the amendment was made, but it recites that a motion to amend was made and granted, and the declaration on the record appearing to correspond with the suggested amendment, it may be fairly and reasonably inferred, that it was made.

H is not necessary for 1he Supremo court to do-ermine the proper manner in which the circmt court should allow amendments to ho made. Our statute in relation to damages on hills of exchange is not limited to the holders of the hills at the timo they become due. The courts will not take cognizance judicially that “Now Orleans” i.< in the State of Louisiana. There must be an averment to that, effect in Hie declaration

*572It is not necessary for this court to determine the proper manner in which 1he circuit court should allow amendments to be made. It may well be questioned whether this court has any control over the records of a circuit court. The party complaining in this case, has, however, by his bill of exceptions, attained every thing which would have appeared had a new count been filed. There is no doubt the amendment was proper, and the defendant had a continuance, and pleaded to the amended declaration. He seems to have suffered no inconvenience by the course pursued in the circuit court.

2. As the second point was not insisted on in this court, I will only observe, that the authorities cited at the bar fully sustain the instructions of the court. Hunter vs. Hempstead 1 Mo. R. 68; Wiggins vs. Rector 1 J. C. 474; 11 Peters R. 80.

3. It is contended that our statute in relation to the damages recoverable on bills of exchange, is limited to the holders of bills at the time they become due: there is nothing in the terms of the act to justify such a construction. The expressions in the act are unqualified, and we are not at liberty to resort to construction to ascertain the meaning of an act which is plain and unequivocal.

But the jury in this case gave ten per cent, damages, as though the bill was payable at New Orleans in the State of Louisiana. There was no averment in the declaration that New Orleans was notwithin this State, andthe courts of this State cannot take judicial cognizance of places without its *573limits. Had there been such an averment in the declaration, the jury would have required, I suppose, but slight testimony to lead them to the conclusion that the New Orleans mentioned in the bill v&is in the State of Louisiana. In Kearney vs. King, (2 Barn. & Ald. 302,) the'court of Kings Bench declared .that they Avould not take cognizance, judicially, that Dublin was in Ireland, though this case occurred subsequent to the Union; and because the declaration did not.describe the bill as drawn at Dublin in Ireland, they would not allow a bill appearing to be drawn at Dublin in Ireland to go in testimony.

For this last reason, the judgment must be reversed, unless the plaintiffs will remit six per cent of the damages—in which event the clerk will enter an affirmance of the judgment.