Evans v. Gee (36 U.S. 80)

ERROR to the District Court for the Southern District of Alabama. The defendant in error, Sterling H. Gee, a citizen of the state of North Carolina, instituted an action of assumpsit in the district court, against Thomas Evans, a citizen of the state of Georgia. The action was founded on a bill of exchange, drawn by Harris Smith, in Wilcox county, in the state of Alabama, December 16th, 1834, on George M. Rives, at twelve months after date, payable to the order of Thomas Evans, and by him indorsed in blank. The bill was regularly protested for non-acceptance, and the suit was brought, without waiting for the arrival of the day of payment. The cause was tried at May term 1836. The defendant excepted to the opinion of the court, and a verdict and judgment having been given for the plaintiff, the defendant prosecuted his writ of error.

The record showed, that at May term 1835, the defendant filed a demurrer to the plaintiff's declaration, which was in the common form; and that at the December term of the court following, 'the plaintiff takes nonsuit;' upon which the court entered a judgment of nonsuit, and immediately after, on motion, the judgment of nonsuit was set aside. At the following May term, no other pleadings having been filed, the case was tried by a jury, and a verdict, under the instructions of the court, was given in favor of the plaintiff, for the whole amount claimed by him, on which the court entered a judgment, according to the verdict.

The bill of exceptions stated, that the bill being relied on by the plaintiff to sustain his action, together with proof of protest for non-acceptance, and notice to the drawer and indorser of the protest for non-acceptance; the defendant offered to prove by way of defence against the said evidence, that the said bill was given by the said defendant to Charles J. Gee, for property purchased by him; that the property belonged jointly to Charles J. Gee and Sterling H. Gee, the plaintiff; that they then were, and continued to be, and then were, general copartners; that when the indorsement was made on the bill, it was indorsed in blank, and that the said indorsement has been filed up by the plaintiff's counsel, since this suit was commenced; that Charles J. Gee resided in this state, and did when the suit was brought, and was a citizen of the state of Alabama; and that the defendant, and H. S. Evans and George M. Rives, were also,, citizens of this state. This evidence the court rejected, on the ground, that the indorsement having been made and given in blank, the plaintiff was authorized to fill it up, as above shown; and that the facts above set forth could constitute no defence, and were not proper evidence. The court further instructed the jury, that the bill being drawn in this state, and on a person residing in this state, and made payable in this state, upon non-acceptance and notice, the indorser was liable for ten per cent. damages on the amount of the bill, for want of acceptance therefor.

The case was argued by Key, for the plaintiff in error; and by Ogden, for the defendant.

WAYNE, Justice, delivered the opinion of the court.