Evans v. St. John

1. Questions cannot, under any circumstances, be reviewed in the Supreme court, which were omitted to be presented before the Circuit court, when sitting as a court of errors, on judgments rendered by the County court. 2. Parties are presumed, by the rules ef practice, to waive all errors not specially mentioned in their assignments. 3. But where there is no joinder in error, and in cases where parties are permitted to re-assign, the court.will look into matters not covered by the errors assigned. 4. A plaintiff in an action need not reply specially to pleas concluding to the country, and the omission of a similiter is not an error for which judgment will be reversed. 5. The admission or rejection of additional pleas, is a matter wholly within the discretion of the -court, and cannot be examined in a court of errors. 6. The holder of a bill of exchange, is only bound to present the bill at the place designated for payment, and if refused, his right of action against the drawer is complete, when the bill is protested and notice duly given. 7. It is immaterial to the defence, whether a bill is made for the benefit of the acceptor or maker, or by which of them the funds are used: — So, also, the omission of a personal demand of the acceptor. 8. A plaintiff in error can have no legal advantage from a mere clerical error, and its correction, impairs no right which he can assert! 9. If a judgment be entered for too much, in consequence of a clerical error, it may, notwithstanding error brought, be amended in the court below, and the amended judgment will be affirmed without damages, and at the costs of the defendant in error. 10. Whether a defendant in error, by obtaining the amendment of a judgment pending the writ of error, has discharged the sureties in the writ of error bond,— Quere.

Error to the Circuit court of Wilcox. Assumpsit on a hill of exchange. In this case, St. John, as the surviving partner of St. John & Leavens, instituted an action of assumpsit in the County court of Wilcox county, against Evans. The declaration, besides the usual money counts, discloses the cause of action to be an inland bill of exchange, drawn by H. S. Evans, the plaintiff in error, on, and accepted by, Thomas Evans, payable to the order of, and endorsed by Charles Irby & Co., negotiable and payable at the office of discount and deposit at the Bank of the United States, at Mobile. A presentment for payment at the bank, protest for non-payment, and notice to the endorser, is alleged in the special count on the bill. The defendant, at July term, eighteen hundred and thirty-six, pleaded— 1. The general issue; 2. Payment and set-off; 3. That payment was never, demanded of the acceptor, in whose hands funds were placed to pay the bill. Issue was joined on the second plea, and to the third, a replication was filed, alleging that the bill in question was duly presented to the bank where made payable, and payment thereof duly demanded. It is stated in the minutes of the court, for January term, eighteen hundred and thirty-seven, that the parties then came, by their attorneys, and the defendant pleaded the following pleas, in short, by consent: 1. Payment, accord, and satisfaction and set-off; 2. General issue; 3. Pending of a former suit, for the same cause of action ; 4. That the court had no jurisdiction, the sum involved being more than six thousand dollars; 5. That the plaintiff had never claimed payment of the acceptor, in whose hands funds were placed to pay the bill. It is also stated, that the defendant’s' demurrer to the plaintiff^ replication to the fifth plea having been argued, was overruled by the court, as was also his motion to strike out the rejoinder. A jury was then sworn, to try the issue joined, who returned a verdict for the plaintiff. This verdict was set aside, and a new trial granted, At the ensuing term, it was agreed between the parties, that the two pleas to the jurisdiction pleaded at the previous term should be stricken out, and the cause was again submitted to a jury, which returned a verdict for the plaintiff, on which judgment was rendered, In the progress of the trial, several exceptions were taken by the defendant, to the action of the court in overruling motions to allow him to plead other pleas, the admission of evidence, &c. These exceptions, as shewn on the record, are as follows: . * 1. The court overruled the defendant’s motion to be permitted to plead additional pleas to the merits of the cause, of matter of defence, which existed at the time when the pleadings were made up, but not then, within his knowledge. 2. The court excluded evidence of the account due to Charles Irby & Co., which was liquidated by the proceeds of the bill of exchange sued on, and two others, made by the same parties, which was offered to reduce the amount of the bill. 3. The defendant, offered to introduce Thomas Evans, the acceptor of the bill, to prove the entire contract between the parties, who stated the bill in question was made for his benefit, and that he received the proceeds: and also to prove that the bill was given to raise money on — all which was overruled by the court. 4. The defendant further offered to prove by said acceptor, that he had funds in his hands, more than enough to cover the bill at its maturity — which evidence the court ruled to be irregular. 5. The defendant further offered to prove by the same witness, that no demand was .ever made of him to pay the bill. The court ruled that such a demand was unnecessary, inasmuch as the bill was payable at a bank. The defendant prosecuted his writ of error to the Circuit court, to reverse the judgment rendered against him, and assigned as errbr: 1. (To) the first pleas, general issue and non-assumpsit —issue was never taken by plaintiff, and was not disposed of by the court. 2. The court refused to let defendant put in a plea of puis darrien continuance at the trial term, the matter of which plea came to the knowledge of the defendant, after the pleadings were made up, which motion to put in said plea, was made on the first day of the trial term, and was not acted on until the cause came on for trial, which was two days after the motion was made, which plea extended to the merits of the case. 3. The defendant offered on the trial, the account of Charles Irby & Co., which was liquidated by the proceeds of the bill of exchange sued on as evidence, to show the bill was drawn and discounted by the plaintiffs for a larger amount than it should have been — which evidence the court refused to allow. 4. The defendant offered Thomas Evans, acceptor of the bill, as a witness to prove the contract between the parties, and to prove he had sufficient funds in his hands at the maturity of the bill, of the makers’, to discharge it, and that the same was never presented to him for payment : which the court refused to permit to go to the jury as evidence. The judgment was affirmed at the May term, eighteen hundred and thirty-eight, of the Circuit court, and judgment rendered for the debt and damages consequent on affirmance against the defendant and Abel E. Evans, his security on the writ of error bond. A writ of error was sued out to the Supreme court, on the twenty-ninth June, eighteen hundred and thirty-eight, to reverse the judgment of the Circuit court, and at the subsequent Fall term of the Circuit court, the judgment of affirmance, rendered at the previous term, was corrected, it having been entered for a smaller sum than it should have been. This amendment of the judgment was made against the consent of the defendant, who appeared, and contested the authority of the court to make the amendment. Errors were assigned in this court, without noticing the action of the Circuit court on the errors there assigned, but covering the alleged errors of the County court; and also alleging error in the action of the Circuit court, in amending the judgment after writ of error sued out.