Union Bank v. Hicks, Ewing & Co.

23 Tenn. 327 | Tenn. | 1843

Green, J.

delivered the opinion of the court.

Two notes were placed in the Union Bank by Hicks, Ewing & Co., for collection, the one as alleged in the declaration, executed by A. Dale & Co., and endorsed by Lemuel Duncan and R. E. Knott & Co., and the other executed by A. Dale & Co., and endorsed by Dale & Philips and R. E. Knott & Co. These notes were endorsed by Hicks, Ewing & Co. and placed in the Branch of the Union Bank at Columbia, to be collected according to the custom of the Bank. But no demand was made at the Union Bank at Nashville, where the notes were payable, when they fell due, nor was notice given to the endorsers. The Bank suffered judgment to go by default, and when a jury was empannelled to enquire of the damages, evidence was offered to prove the endorsement of R. F. Knott & Co. a forgery.

The court was of opinion, that this evidence was incompetent, and that the judgment by default was an admission of the endorsement as described in the declaration.

It is-laid down in all the Books on Practice, and is unquestionable, that a judgment by default is an admission of the cause of action'. Tidd’s Prac.,580; Bingham on Judg. 17. As a necessary consequence, upon an enquiry of damages,, evidence showing that no cause of action existed is inadmissible. Now, what is the.causeof action, stated in this declaration? Does it consist only' in the allegation, that the defendant neglected to make the demand, and notify the parties whose' names were upon the paper? Certainly not. The declaration alleges, that the notes were executed by A. Dale'& Co., and were endorsed by R. F. Knott &. Co. The facts, of the endorsement of the noies, arid of .the. negligence,by reason of .which the defendants failed to fix the liability of the endorsers, consti-' tute the cause of action.' ' If the notes-were not endorsed, there could be no cause of action. For all the Bank was called upon to do, was to take the ‘steps necessary to fix the liability of the endorsers; and if the endorsements were. forgeries, the Bank could have .given that in evidence under the general issue, and the action would have been defeated;' the .facts, therefore, that these notes were executed, were endorsed as described, were placed in the Bank for collection, and that it failed to make demand and give .notice to the parties; are all necessary ingredients and indispensable parts pf the cause of 'action as stated in this declaration.-.

We are'of opinion, therefore, that the Circuit Court committed no error in stating that the judgment by default was an admission of the validity-of-the endorsement..;

Affirm'the judgment.