Evans v. Gordon

ORMOND, I. — As the declaration contained an averment, that the note was protested for non-payment, it is insisted that it was necessary to prove it. Protest not being necessary to maintain an action on a promissory note or inland bill of exchange, the averment of protest being of a fact entirely immaterial, it was not necessary to be proved. The case referred to in 1st Selwyn’s Nisi Prius, note 16, has no application here, as the decision turned on an act of parliament. It is also insisted, that the court erred in rendering judgment, the issue in law being undisposed of. The matter pleaded in the second plea, if it could have been given in evidence at all, was admissible under the general issue. As no judgment of the court seems to have been liad on the demurrer to that plea, we must presume that the plea was waived. The defendant below offered to introduce Thomas Evans, the first endorser on the note [146] sued on, to prove the fact stated in the second plea, which evidence, the court rejected, on the ground that the witness was interested. It is very clear, that the witness had no interest in the suit, but it is as certain that the evidence was wholly immaterial. If the defendant in error held the note, as the representative of A. G. Gordon, he had the legal title, and if it had been made directly to him in his representative character, he could have sued in his own name, disregarding the description of his title. It follows, of course, that he could sue as endorsee, when there was no such description. The evidence, therefore, should have been excluded, as wholly irrelevant. The judgment of the court was right, and will not be reversed, because it was rendered for a wrong reason. It was also insisted, that as the note was payable at a particular place, no recovery could be had without proving a demand at the place of payment. We are clearly of opinion that no such demand was necessary to maintain the action; but that it was matter of defence for the defendant, if he was ready to pay at the time and place appointed. In the case of Irvin vs. Withers, (1 Stewart, 234,) a majority of the court held, that a failure to aver and prove a demand in such a case, was cured by verdict; the minority holding that no demand was necessary. In the latter opinion, we concur. The name of the defendant in error appearing on the back of the note, did not impair his right to recover. It was doubtless endorsed in blank, for the purpose of collection in bank, and the note not being paid, the en [147] dorsement being merely formal, the title to the note still remains in him, and the endorsement of his name on the back,'must be considered a mere nullity. The failure to erase an endorsement which can have no legal effect, certainly cannot be considered a valid objection, and was so decided by this court in the case of Pitts vs. Keyser, 1 Stew. 154. Let the judgment be affirmed.