Riggin v. Collier

• Citation: 6 Mo. 568
• Court: United States State Supreme Court of Missouri
• Decision Date: 30 September 1840
• Parties: RIGGIN v. COLLIER & PETTUS.

6 Mo. 568

RIGGIN

v.COLLIER & PETTUS.

Supreme Court of Missouri.

September Term, 1840.

MULLANPHY, for Plaintiff in Error. Plaintiff in error avers that the Circuit Court erred below in this cause, as will appear from the record, by giving plaintiff in error judgment against defendants in error, whereas by law said Circuit Court ought to have given judgment for plaintiff in error and against defendants in error. Circuit Court erred in allowing defendants in error to amend. Circuit Court erred in overruling plaintiff in error's demurrer. Circuit Court erred in overruling plaintiff in error's motion for a new trial. Circuit Court erred in overruling plaintiff in error's motion in arrest of judgment.

SPALDING, for Defendants in Error. 1st. That the amendment was rightfully permitted by the court. Rev. Code, 467; 4 Mo. R. 426. But that at any rate, no amendment was necessary, because the declaration was originally right, and if not the error was no variance, the initial of the middle name being no part of the name. 2nd. There is no error on the record to arrest the judgment. 3rd. That the court did right in refusing the instructions, because 1. The owner of a bill has the right to fill up the blank endorsements to himself: Hunter v. Hempstead, 1 Mo. R. 68; Wiggins v. Rector's Ex'r, 1 Mo. R. 478; 11 Peters' R. 80. 2. And a subsequent endorsement in full does not prevent it: Chitty on Bills, 256; Johns. R. 230. 3. Nor is it necessary, in order to recover, that he should strike out the subsequent endorsement in full though in this case it had been stricken out: 3 Wheat. R. 172; 4 Cond. R. 223; 1 Summer's R. 478, Picquet v. Curtis.

MULLANPHY, in reply. The first of the objection to the amendment is the manner of its introduction, not that there would have been equal ground of exception, had a new count been filed. The bill of exception is the only and proper mode of preserving the real state of the record. Supreme Court will not interfere on mandamus to prevent violation of the record. Dixon v. Judge 2nd Judicial District, 4 Mo. R. 284. Again, there was in fact no amendment--an amendment is the supplying or correcting a defect. The count was a perfectly good count. It wanted no correction. There was no defect to supply. The act was an alteration of the demand: a motion by plaintiff to strike out oyer and enter up judgment was undisposed of on the record. It was not withdrawn: Rules of Court § 9. Judgment on verdict could not be entered up without error whilst a motion made before verdict to enter up judgment peremptorily was pending and undetermined. Therefore, judgment thus improperly entered up ought to have been arrested on defendant's motion to that effect. It is conceived that this point is error patent upon the record, and no motion in arrest was necessary. See 2 Mo. R. 215; Selwyn's Nisi Prius, 955. The then holder of the bill could then by assignment of the bill convey his interest in it. But he could not convey a right of action for statutory damages, so as to enable an assignee after presentment, protest, and dishonor, to recover same in his own name. Bonds and Notes, Statutes of Mo., § 2, p. 105. And previous to the holder's having a claim for damages, it must be proved that they purchased for a valuable consideration. Statutes of Missouri, sections 98, 99. Bills could not be duly presented except by holder or his agent: Chitty on Bills, 259; Walker v. Barnes, 1 Wend. 36; Chitty, 221, note b. The right to damages must accrue upon presentment and dishonor or never. There was no proof that New Orleans was out of the State of Missouri; that was essential to damages. 9 Johns. 121; Sproule v. Sproule, 1 Barn. and Cress. 16. Bill payable at Dublin without stating, Dublin, in Ireland, will be presumed payable in England. Chitty on Bills, 5, 82; Letree v. Don, 9 Wheat. 558. Bank of United States v. Smith, 11 Wheat. 171.

NAPTON, J.^a1

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 changing the name of Thomas D. 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 eontinued 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 entered accordingly. 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. 2nd. Because the whole proceedings are irregular, erroneous and informal. 3rd. Because the writ, declaration, amendments, and judgment are irregular, erroneons 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 woods: “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 blank; that William C. Anderson, the agent of said...