Lafitte, Dufilhoe & Co. v. Perkins

Wyly, J. In June, 1865, the defendant drew his draft ón J. & H. Perkins, of New Orleans, payable on first November following. It was accepted by tbe drawees; it was again presented for payment and protested for non-payment. On the trial the testimony showed that the notice of protest was sent to the postoffice at Baton Ronge, and not to the defendant's postoffice at Bayou Sara. There was judgment for defendant, dismissing the suit, and plaintiffs have appealed. The evidence clearly shows that the conditional obligation herein declared upon was not rendered unconditional by notice of protest not being duly served on tbe drawer of tbe draft. Our attention is called to a bill of exception taken by tbe plaintiffs to tbe ruling of the court iu not permitting them to compel the defendant to answer their interrogatory inquiring whether the defendant had funds in the hands of the drawees at the time the draft was drawn, -and at the time it was protested for non-payment. We think the District Judge did not err in refusing the testimony sought by plaintiffs because they had made in their petition no allegations to warrant the' same. It is well settled that a petitioner cannot he permitted to prove more than he has alleged. We see no error in the judgment. It is therefore ordered that the judgment appealed from he affirmed with costs.. Rehearing refused.