Long v. Crawford , 18 Md. 220 ( 1862 )

Goi,ds.norough, J.,

delivered the opinion of this court.

This action was brought by the appellants against the appellee to recover on the promissory note mentioned in the record. Besides the count on the note, the plaintiff’s declaration contained the indebitatus and common money counts.

The defendant pleaded non assumpsit. At the trial, the plaintiffs offered the evidence stated, ante 221, 222.

The defendant then asked the court to instruct the jury, that upon the pleadings and all the evidence in the cause, the plaintiffs are not entitled to recover in this action.

“1st. Because no sufficient evidence has been offered to the jury, from which the jury can find that notice of protest was given to the defendant according to law, so as to bind him for the payment of said note in the declaration mentioned and offered in evidence.”

2nd. “Because no sufficient evidence has been offered to the jury from which the jury can find that the defendant waived notice of protest.”

3rd. “Because, upon the evidence offered by the plaintiffs, and upon all the evidence in the cause, the plaintiffs were not the holders of the said promissory note at the time the same became due, and was protested for non-payment, and therefore have no right of action against the defendant, as endorser

The court granted the third prayer of the defendant, and did not deem it necessary to decide upon the first and second prayers, inasmuch as the third prayer disposed of the case.

To the granting of the third prayer by the court, the plaintiffs excepted.

The structure of the prayer in this case is similar to that in the case of Yingling vs. Kohlhass, decided by this court at the present term, (ante 148.) In that the court say, “this general prayer is followed by particular specifications of the points upon which the opinion of the court is asked, and the prayer must be read distributively, as if it had been repeated before each of the specific grounds or objections stated.”

The prayer granted by the Circuit court presents two points for our consideration: 1st, was the note in question negotiable after its maturity? and 2nd, was the possession of the note by the plaintiffs, at the institution of the suit, prima facie evidence of their right to sue for the same?

We entertain no doubt that both of these points are with the plaintiffs, and they are affirmatively sustained by numerous authorities. See 4 Gill, 326, Chitty on Bills, 243, and note, and 3 Maule. & Selw., 95, as to first point; and as to the second, see 1 Gill, 146, 6 Gill, 2, 6 Md. Rep., 516, 9 Md. Rep., 462. Being therefore of opinion that the Circuit court erroneously granted the defendant’s third prayer, the judgment must be reversed and a procedendo ordered. Though the Circuit court did not deem it necessary to decide upon the first and second prayers, yet as they were fully argued before us, and either or both of them may arise in the further progress of this cause, we deem it proper to prevent future litigation, to express our Opinion upon them.

Had the defendant insisted upon an expression of opinion from the court on these prayers, they should have been rejected, because, in the first place, we think there was evidence offered by the plaintiffs legally sufficient to go to the jury, from which they might have found that notice of protest was given to the defendant, and, therefore, there was no necessity to prove a waiver of notice, or, in the second place, if the plaintiffs failed to offer sufficient evidence of notice of protest, still there was evidence offered by the plaintiffs from which the jury might find a waiver of notice.

(Decided February 11th, 1862.)

Judgment reversed, and procedendo awarded.