Robinson v. Johnson

• Decision Date: 31 May 1824
• Citation: Robinson v. Johnson, 1 Mo. 434 (Mo. 1824)
• Parties: ROBINSON v. JOHNSON.
• Court: Missouri Supreme Court

1 Mo. 434

ROBINSON

v.JOHNSON.

Supreme Court of Missouri.

May Term, 1824.

ERROR FROM THE ST. LOUIS CIRCUIT COURT.

PETTIBONE, J.

This was an action of assumpsit, by Robinson, the plaintiff, as endorsee of a bill of exchange, against the defendant, as drawer. The bill was drawn in Kentucky, upon A. R. Woolley, in Pittsburgh. Upon the trial of the cause, the plaintiff offered in evidence, a protest of the said bill of exchange, under the notarial seal of John Shaw, a notary public; the reading of which was objected to by the defendant, and the objection sustained by the court. The plaintiff also read in evidence, the deposition of John Shaw, who testified that the bill of exchange annexed to his deposition (being the same described in the declaration) was, by him, as notary public, regularly protested for non-payment, on the 26th day of April, 1819, and that notice thereof was regularly and promptly given to the drawer of the said bill of exchange, James Johnson, by addressing to him, the said James Johnson, on the 26th day of April, 1819, notice in writing, of the non-payment of the said bill of exchange, and placing the said notice in the post office at Pittsburgh. The defendant's counsel prayed the court to instruct the jury, that unless they find that the said bill of exchange was presented for payment, at the time and place mentioned in the declaration, and that payment was refused, and that notice of the same was given to the defendant, they must find for the defendant; that these facts were necessary to be proved, and that the deposition of John Shaw, read in this case, is no evidence of these facts. And the said court then and there instructed the jury, that there is nothing contained in deposition of John Shaw to support the material allegations contained in the declaration, to sustain the action. To these several opinions and instructions, the plaintiff excepted. A verdict was found for the defendant.

The first point which I shall consider, is, whether the protost was properly excluded from going in evidence.

Secondly, whether the court erred in giving the foregoing instructions.

We are of opinion, the court erred in rejecting the protest. The plaintiff has averred in his declaration, that the bill was duly protested. He has right to prove that averment, unless it appears to the court to be altogether immaterial. By the laws of this State, the party is entitled to damages on a protested bill of exchange drawn here. A similar law may exist in Kentucky, where this bill was drawn. That would be a matter of evidence which the party would be entitled to make, under his declaration, and not a matter to appear in the...