Holmes v. Preston , 71 Miss. 541 ( 1893 )

Cooper, J.,

delivered the opinion of the court.

If the plaintiffs had declared against appellant, as they might have done under the facts proved, as primarily bound with Garrott, or as a guarantor, their right of recovery would have been clear, without regard to the fact that he did not have notice of the protest of the bill of exchange. Thrasher v. Ely, 2 Smed. & M., 139; Baker v. Kelly, 41 Miss., 696; Tatum v. Bonner, 27 Ib., 760. But, having sued him as an indorser, it Avould have devolved upon them to prove notice and protest, if the defendant had objected to the evidence introduced to charge him in another character. This the defendant failed to do, and the evidence of the plaintiff tending to prove that notice was given, and that defendant was bound Avithout regard to notice, the defendant introduced some evidence tending to prove the contrary, and then demurred to the evidence. The record discloses a novel conception of the office of a demurrer to evidence. Some of the evidence for the plaintiff' was by deposition, and some of it oral testimony, taken down as it fell from the lips of the witnesses. and all of the evidence for the defendant was oral testimony. The evidence, both for plaintiff and defendant, was set out in full, and the demurrer of the defendant was to the whole, both that of the plaintiff and his own. The plaintiff, “ without admitting the correctness of the statements of the defendant,” joined issue on the demurrer, on the hearing of which, the court gave judgment for the plaintiff. "Without regard to the irregularities in the proceedings, we think a right result has been reached, and that, under the facts developed, a new trial would avail the defendant nothing.

The judgment is therefore affirmed.