Freligh v. Ames

• Decision Date: 31 October 1860
• Citation: 31 Mo. 253
• Parties: FRELIGH, Respondent, v. AMES et al., Appellants.
• Court: Missouri Supreme Court

31 Mo. 253

FRELIGH, Respondent,

v.AMES et al., Appellants.

Supreme Court of Missouri.

October Term, 1860.

1. An affidavit for continuance which states that a witness was “late of this state and now out of the state and will in all probability be back,” is insufficient upon which to warrant a continuance of the cause.

2. It is no defence to an action on a note against a security that the security requested the payee to sue the principal and he refused. Under the statute (R. C. 1855, p. 1454, § 1) notice must be given in writing.

3. An endorser of a negotiable note is not a security within the contemplation of the statute relating to securities.

4. It is within the discretion of the court below to limit the time of counsel in which to address the jury, and this court will not interfere.

Appeal from St. Louis Circuit Court.

This was an action on a negotiable promissory note executed in March, 1857, by Ames to Hofelman's order, payable eight months after date. The note was endorsed by Hofelman and L. Lawrence, and when due, was presented at the place made payable, and not being paid, was duly protested and the endorsers duly notified of the nonpayment so as to be bound and liable. Ames and Hofelman answer separately, both plead usury, payment of the note by other notes, and deny ownership of plaintiff, charging the assignment to be in bad faith for the purpose of avoiding equities between the true owner, maker and endorser, and that the note really belongs to Lawrence, the defendant, and that the note was made by Ames and for his accommodation endorsed by Hofelman to enable him to pledge it with Lawrence for the amount due him by Ames. Hofelman, in his answer, further avers, that he gave notice to the holder Lawrence about January, 1858, to attach the property of Ames, as he was about to leave the state, and that he (Hofelman) would consider himself discharged unless Lawrence would attach Ames' property, to satisfy the note. When the cause was called for trial in May, 1858, Hofelman made affidavit for continuance, based on the absence of a witness, Anton Ronger, “late of the city of St. Louis;” “that said witness is now out of the state, and will in all probability be back to this city,” &c., &c. The court refused a continuance. The cause was tried a day or two afterwards, and the witness Ronger being called again and not answering, the motion for continuance was renewed and overruled. Plaintiff produced the note and proved due protest and notice, and...