Evans v. Gee (39 U.S. 1)

IN error to the Circuit Court of the United States for the Southern District of Alabama.

In the Circuit Court of Alabama, an action was instituted by Sterling H. Gee, the defendant in error, against Thomas Evans, on a bill of exchange drawn by Harris G. Evans in favour of Thomas Evans, on George M. Rives of Mobile, for five thousand three hundred and fifty dollars, dated 16th December, 1834, due twelve months after date, negotiable and payable at the office of discount and deposite of the Branch Bank of the United States at Mobile; for value received; and protested for non-acceptance.

The declaration does not charge that notice of the non-acceptance was given to the endorser. No proof was given at the trial of such notice.

To this declaration the defendant (the endorser of the bill) demurred, and the plaintiff was nonsuited: afterwards, at the same term, the nonsuit was struck out, and the cause continued. At the next term a jury was empannelled, who found a verdict for plaintiff, on which judgment was entered.

Thomas Evans, the defendant in this judgment, died 12th September, 1837; and, on the 16th March, 1838, a fieri facias issued on the judgment.

The administrator of the deceased made a motion to quash this execution at May term, 1838: but the Court overruled the motion; and gave judgment, sustaining the execution.

The defendant prosecuted this writ of error.

The case was argued by Mr. Key for the plaintiff in error. No counsel appeared for the defendant.

For the plaintiff in error it was contended, that the judgment of the Circuit Court was erroneous, because it did not appear on the record that a plea was filed by the defendant to the plaintiff's declaration; or that any issue was joined before the trial of the cause.

2. No notice of the non-acceptance of the bill of exchange was charged in the declaration, nor proved at the trial.

3. No judgment was given by the Court on the demurrer of the defendant.

4. The judgment of the Circuit Court sustaining the execution was erroneous.

Mr. Key stated that the cause had been brought up, mainly, upon the motion to quash the execution; and the question was, whether the Court would sustain a writ of error on that ground. He cited 4 Cranch, 324; 6 Cranch, 233, 235; 7 Wheat. 534; 8 Peters, 259. In the case before the Court, the execution was issued against the property of a deed man. Thomas Evans died in 1837. A case was decided by this Court which goes fully up to the question in this case. Boyle vs. Zacharie and Turner, 6 Peters, 648.

Mr. Justice CATRON delivered the opinion of the Court.