JAN. TERM, 1856. KINNEY V. HEALD. *KINNEY & GOODRICH [11397 V. HEALD. An affidavit for attachment, containing all the substantial requirements of the statute, and filed before the issuance of the writ, is sufficient, though not ' entitled," nor attached to any of the original papers in the cause. An action will lie at the suit of a drawer of a bill of exchange, against the acceptor, upon present-ment to, and refusal to pay by the acceptor, and payment by the drawer : And such bill, with endorsement of acceptance, is admissible in evidence for the plaintiff. The cases of State Bank v. Conway, 13 Ark. 305, and Jones v. Gatlin, 16 Id. 35, as to the practice on motions for new trial, cited and approved. Writ of Error to Sebastian Circuit Court. HON. FELIX J BATSON, Circuit Judge. Watkins & Gallagher, for appellants. HANLY, J. This was an action of assumpsit, commenced by attachment, brought by the defendant in error, against the plaintiffs, in the Sebastian circuit court. The declaration was as follows: "For that, whereas the said plaintiff, on the 19th day of April, 1853, at New Orleans, in the state of Louisi-ana, to-wit, at the county of Sebastian, made his bill of exchange in writing, dated on that day, and directed the same to the said defendants, to pay to the order of Hume & Butt, 6836.19, and then and there accepted the same, and promised the said plaintiff to pay the same, according to the tenor and effect thereof, and of their acceptance thereof. Yet they did not pay the amount thereof, although the said bill was then presented to them, on the day when it became due, and thereupon, the same was then and there *returned to P398 the plaintiff ; of all of which, the defendants then and there had notice, and then and there, in consideration of the premises, promised to pay," &c., with the usual breach, and damage, &c. The affidavit upon which the attach-
KINNEY V. HEALD. VOL. 17 ment was issued, is in these words: facts were all the evidence introduced "We" (the attorneys for the plaintiff at the trial. On these facts, the court —naming them), "do depose and say, found for, and rendered judgment in that the defendants" (naming them) behalf of the defendant in error, for "are justly indebted to John H. Heald, the amount of the bill of exchange, in the sum of $836.19, which sum is and interest, and the plaintiffs brought now due, and that the said defendants" error. (naming them) "are not residents of Three errors are assigned and relied the state of Arkansas." upon for the reversal of the judgment It appears, from the bill of exceptions of the circuit court. taken during the progress of the trial, 1. Because the circuit court refused that the above affidavit was written on to sustain the exceptions of the plaint-a separate piece of paper, not "enti-iffs in error, to the affidavit for attach-tled," nor connected with, or attached ment. to any of the original papers in the 2. Because the circuit court over-cause. ruled the objection of the plaintiffs in The plaintiffs in error pleaded non error, to-the introduction as evidence, assurnpsit, and excepted to the suffi-by the defendant, of the writing sued ciency of the above affidavit. The ex-on. ceptions to the affidavit were consid-. 3. Because the judgment is in favor ered by the court, and overruled, for of the defendant in error, when it which, the plaintiffs in error excepted. should have been for the plaintiffs. The issue upon the plea of non as-1. The first error assigned, does not sumpsit, was submitted, by consent, to seem to be nauch relied on by the the court, sitting as a jury ; and the plaintiffs, as it is not noticed in the defendant in error, to maintain the brief of counsel, or alluded to in his ar-issue on his part, produced, and offered gument. As far as we can judge, from to read as evidence, a bill of exchange, the face of the affidavit, on which the which is as follows: attachment issued, it contains all the "$836.19. substan tial requirements of the statute. The mere fact of its having been writ-NEW ORLEANS, April 9th, 1853. ten on a detached piece of paper, and Pay to the order of Hume & Butt, not"entitled," though a loose and ir-eight hundred and thirty-six 19-100 regular mode of proceduref in such dollars, value received, and charge the cases, is not so, to such an extent, as to same to account of authorize this court to say, that the J. HEALD, court below should have sustained the Per John Phelps. exceptions of the plaintiffs in error, To Messrs. KINNEY & GOODRICH, taken ta the affidavit on this account. Port Washita." 2. It is evident, from both the letter This bill was duly accepted by and tenor of the declaration in this the plaintiffs in error, and the case, that it was intended to be an or-introduction and reading of which, dinary suit, by the drawer of the bill were objected to by them at of exchange, against an acceptor, after. 3999 N,he trial, and their objection its presentment to, and refusal to be-overruled by the court, and the same paid by the acceptor, and after its re-- pemitted to be read as evidence for the turn to, and payment by the drawer, defendant in error : to which, the in accordance with the law merchan t-plaintiffs in error excepted at the time, There can be no doubt, but that such and set out in the bill, that the above au action will lie under the law mer-
-JAN. TERM, 1856. KINNEY V. HEALD. .chant, and we know of no provision of here, it would not be necessary for the our statute which changes that law, to plaintiff to prove the acceptance of the the extent of rendering the action bill, unless that fact were denied by the questionable with us. It was, there- acceptor by plea, verified by affidavit, 4001 fore, proper for the *defendant under our statute. in error in this cause, not only to pro- In Smith v. Bryan, 11 .IST. C. Rep. 419, duce, but to read the bill, and the ac- before referred to, and a case Very sim-ceptance thereon endorsed, as a part of ilar in its facts, to the one we are con-his evidence, to sustain his action. We sidering, Ruffin, C. J., in delivering will consider of this branch of the sub- the opinion of the court, said ject more fully, when we come to con- "But when the drawer brings suit sider and dispose of tbe third error as- on the bill, the declaration states, signed. We, therefore, hold that the °not only the drawing of the P401 court below (lid not error in permitting bill, and its acceptance, and the non-the defendant in error to read the bill payment by the defendant, but that sued on, and the acceptance thereon the plaintiff thereby became liable as andorsed, on the trial. drawer, and paid it. It is, therefore, 3. We have said, that an action will indispensable on such a count, to prove lie, at the suit of a drawer, against an the payment of the bill, or, at least, to acceptor, under the facts stated in the prove the payee's name, in blank, on preceding head, and we are sustained the bill, as an authority to till up a rein this, by both principle and author- ceipt to the plaintiff for its amount: ity. See 1 Saunders Pl. & Ev. 513; for the mere possession of the bill, pay-Symmond v, Parmintu, 1 Wits. 185; able, and therefore belonging to a third Bayley on Bills 392; Chitty on Bills person, is not evidence that the drawer 804; Smith v. Bryan, 11 N. C. Rep. has got it up by paying it, so as to en-(fredell) 419; Benjamin v. Taman, 2 title him to sue on it. If a bill be pay-MeLean's Rep. 213. able to the drawer's own order, and he By t he law merchant, when a drawer transfers it by endorsement, and after-of a bill: payable to the order of a third wards becomes holder again, he may person, and returned and taken up by then have an action on it against him, sues the acceptor, he must, if de- the acceptor, because, by the posses-nied, prove the acceptance. See 1 sion, he stands, prima fade, on his Saunders Pl. & E y . 493, 503. He must original rights." &c. " * * * prove the presentment of the draft to "But, it is otherwise between the the acceptor; and his refusal to pay. drawer and the acceptor of a bill, pay-This may be done by calling the per- able to another; for the drawer has no son who presented the bill, or else by original right to the instrnment against proving a promise to the defendant to the acceptor, but only t he right aris-pay, as that will dispense with the ing out of his secondary liability, in proof of the presentment. In such a the event of non-payment by the ac-suit, the return of the bill to the draw- ceptor, on due presentment. Hence, er, and his payment of it must be the uecessity, as before mentioned, proved in order to show t hat the right of that the drawer should show such fail-action thereon, was vested in him. ure by the acceptor, and that he, the See the reference we have made to 1 drawer, paid the money, in order to Wils.185; Pfiel V. Van Catenburg, 2 entitle him to sue on the bill." Camp. 439 ; 1 Saunders Pl. & Ev. 513. We have thought proper to say this And such we hold the law to be, in much in reference to the averments this State, in such cases : except, that that a declaration should contain,
VOL. 17 founded on a cause of action, such as In the case before us, no other ques-the one before us, and the proof neces-tion or point of law, was saved during sary to support such action, with the the progress of the trial, after the ex-view and hope of making ourselves un-ception was taken to the admission of der:stood in reference to the compe-the bill as evidence for the defendant tency of the bill, as evidence, in part, in error, and as we have before re-to enable the defendant in error to sup-marked, no motion for a new trial was port his action, the bill itself, with the made after the evidence was concluded, acceptance thereon endorsed, being an and the finding of the court thereon important link in the chain of the tes-pronounced. The exception was to timony, which, to entitle the party to the finding of the court, upon the evi-a recovery, must be connected and un-dence offered, and the party except-broken in all its parts. ing, in the very expressive language of The plaintiffs in error, having only the learned Chief Justice, just quoted: excepted during the progress of the "did not put his finger upon the al-trial, to the ruling of the court below, leged error of law," committed by the in permitting the defendant in error to court, in the finding upon the facts. read the bill sued on, as a part of his Wherefore, upon the transcript as it evidence, to support his action (and we stands, divested as it should be, of have held that ruling right), and not every fact brought upon the record by having, after all the evidence was sub-the bill of exceptions, after the admis-4021 mitted to *the court, sitting as sion of the bill of exchange sued on, a jury, and after the finding of the we shall be compelled to affirm the court in favor of the defendants in er-judgment of the court below. ror, upon that evidence, moved for a Let the judgment of the Sebastian new trial, we cannot, consistently, circuit court be affirmed at the costs of with the recent decisions of this court, the plaintiffs in error. consider whether or no, there was any Absent, Mr. Justice Scott. other evidence adduced on the part of Cited:-17-469; 21-287. the defendant in error, in addition to the bill and its acceptance endorsed, notwithstanding the bill of exceptions copied in the transcript, affirmatively shows, that none other was, in point of fact, offered; for the practice of this court, and consequently the law, is, in the language of Watkins, C. J., in State Bank v. Conway, 13 Ark. Rep. 354, 355, "That if a party merely excepts to the finding of the court or jury, setting out the testimony, without any motion for a uew trial, or without any exception, whereby he shall put his finger upon the alleged error of law, as to any ruling or decision of the court below, there is no case presented for the consideration of this court." And to the same purport, is the opinion of Mr. Justice Scott, in Jones et al. v. Gatlin, 16 Ark. Rep. 35.1 1. On motion for new trial, see Danley v. Robins, 3-146, note 1.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.