Washer v. White

• Decision Date: 29 May 1861
• Citation: 16 Ind. 136
• Parties: Washer v. White and Others
• Court: Indiana Supreme Court

16 Ind. 136

Washer v. White and Others

Supreme Court of Indiana

May 29, 1861

APPEAL from the Jefferson Circuit Court.

The judgment is affirmed, with 3 per cent. damages and costs.

J. W Chapman, for the appellant.

C. E Walker, for the appellees.

OPINION

Hanna J.

The appellees sued the appellant, as drawer, and one Thomas, as acceptor, of a bill of exchange. In two paragraphs of the complaint, it is averred that the bill was duly presented at maturity, and not paid; that it was protested and notice given. In the third that it was not presented, &c., but that Washer afterwards promised to pay. Answers were filed by each defendant. Thomas subsequently withdrew his, and suffered judgment to be taken. Appellant's answer contained several paragraphs in denial, and one admitting the promise to pay, after dishonor, but averring that it was made in ignorance of the fact of non-presentment. Replication in denial. Trial; finding and judgment for plaintiffs. There is but one assignment of error which we can notice. That brings to our consideration the sufficiency of the evidence to sustain the finding, and the correctness of the ruling of the Court in refusing a new trial on the ground of surprise.

The defendant gave no evidence. The plaintiff introduced the bill of exchange, the certificate of the notary of its presentment and non-payment, depositions upon the point of notice, and showing payments made by appellant, some time after protest, to more than half the amount of the bill.

The evidence contained in the depositions tends but slightly to prove that notice was given to appellant; but the payments made by him, near six months after the dishonor of the bill, were at least prima facie evidence, if no more, of his liability. Byles on Bills, 203.

We can not disturb the judgment on the ground of the insufficiency of the evidence.

By the affidavits of appellant and Thomas, it is shown that appellant was an accommodation drawer; that the payments that were made on the bill, although by the hand of appellant were of the means of Thomas; that the latter would so testify; that he had been subpoenaed; that he lived within a square and a half of the Court-house, and had promised Chapman, the attorney, that he would attend as a witness, but did not do so because he supposed the case would not be tried in the absence of said Chapman, who was sick, as he understood, and was the attorney with whom he...