Reid v. Reid , 11 Tex. 585 ( 1854 )

Lipscomb, J.

This suit was brought by the appellee, as the payee of a bill of exchange, against the drawer. A copy of the bill is as follows.

$1000. Gbaud Gulf, March 11th, 1851.

Twelve months after date, pay to the order of George W. Reid, one thousand dollars, value received, and charge the same to account of REID & ROBINSON,

Per E. M. Tzhok, Agent of the Guadalupe Navigation Co. To Messrs. R. M. Ellis & Co., New Orleans.

R. M. Ellis & Co., written across the face.

In the petition, the plaintiff alleges that this bill was. made and delivered to him, for a valuable consideration, by the authorized agent of Reed and Robinson; that it was duly presented at maturity, to the drawees, who had accepted it by writing their name across the face of the bill, before its maturity ; that they had refused payment; that it was duly protested for non-payment, and the drawers duly notified thereof; that it was drawn in the State of Mississippi, where five per cent, damages and eight per cent, interest are allowed by law.

The defendant demurred; and answered, 1st, denying all the allegations contained in the plaintiff’s petition; 2nd, and further, that he had sufficient funds in the hands of the acceptors at the time of their acceptance; 3rd, that at the date of the draft and acceptance, the said E. M, Ellis & Go. were the merchants of the defendant; that at the said dates they had sufficient funds of the said Eeid & Bobinson in their hands to pay the full amount thereof; and that the said E. M. Ellis & Co. did pay the full amount thereof, to said plaintiff, or transferred the said amount to the credit of the said plaintiff" on the boobs of B. M. Ellis & Co., and charged the said amount on said books to Eeid & Bobinson ; and that the draft is not the property of the plaintiff, but is the property of, and rightfully belongs to, Eeid & Eobinson, and has been put in suit fraudulently and wrongfully, by the connivance of the said E. M. Ellis & Co., and he files, under the statute, several interrogatories to the plaintiff", to establish this last defence. There was a trial and verdict for the plaintiff; a motion for a new trial, which was overruled ; and the defendant appealed.

The objection presented by the decree is, that the suit under our statute, to fix the liability of the drawer, ought to have been brought to the first Term of the Court after the cause of action accrued, that is after the failure to pay the draft, or to the second Term, on showing good cause why it was not to the first. This is certainly true, according to the statute. (Hart. Dig. Art. 2528.)

But there is an exception in the statute, in favor of drafts between merchant and merchant, leaving the liability of the drawer to be fixed according to the law merchant. The draft, upon its face, has the appearance of being mercantile paper ; and the presumption is that it was between merchant and merchant. If it, in truth, was not, this presumption should have been, rebutted by proof; and there was no evidence, showing the true character of the parties to it.

The appellant contends that the draft should not have been read in evidence, until after the plaintiff" had proven the agency of Tynor, and his authority to draw the draft in his name. The answer is that he should have averred the want of authority in his agent Tynor, and it should have been denied on oath, to put the plaintiff on proof of his authority. This he did not do, and his answer is repugnant to such a defence. The demand, refusal, protest and notice seem to be in strict conformity to the law merchant, to fix the liability of the defendant. There is nothing in the objection that in the notarial act, there was a mistake in the middle letter of the payee’s name, making it George hT., instead of George W. It was not calculated to deceive him. It might possibly have been of some consequence, if the mistake had been in the name of the drawer, if the middle name had been necessary to distinguish him from another person of the same name, only distinguished by a letter between his given and his surname.

The answers to the interrogatories, propounded by the defendant to the plaintiff, were read in evidence, though objected to by the defendant upon the ground that a copy of the interrogatories were not returned with them, and that there is no evidence that they are really the answers of the plaintiff. The statute, authorizing a party to propound interrogatories to the other party, is silent as to the manner in which the answers shall be returned or authenticated; and when a party sues as a non-resident, if the answers he returns, appear to have been sworn to, by the party, before a person that, prima facie, had authority to administer an oath, and such person has authenticated the fact of such oath having been taken before him, the answers ought to be received, if these presumptions of authenticity are not rebutted. The answers appear to have been sworn to before., and authenticated by, a Judge of the Circuit Court of a sister State, his official character certified to by the Clerk of the Court, to which is added the certificate of the Executive, with the seal of the State. The objection that it may not have been really the plaintiff who made the answers on oath, is not thought to b.e worthy of notice. We believe that they were sufficiently authenticated, to authorize the Court to receive them.

The general charge of the Judge was verbal, which is assigned by the appellant as error. The statute of-requires the Circuit Judges to make their general charges to the jury in writing. But we regard the statute as directory in this matter to the Judge. If he disobeys it, we are not aware, that he is responsible to us for such omission; but he is personally responsible to the Legislature. We do not consider that we have any thing to do with the manner, but with the matter of the charge given. If there is no error, in law, in his charge; if he has charged the law correctly, and not usurped the rights .of the jury: we cannot reverse the judgment, upon the ground merely, that the charge was verbal, instead of being in writing.

It is said, however, that his charge was erroneous, in informing the jury that the evidence was sufficient to authorize their finding a verdict for the plaintiff. We say decidedly, that it would be error in a Judge, to charge the jury on the weight of evidence; but where that evidence is all on one side, and a sufficiency of written evidence to authorize a verdict, we do not believe that it would be any invasion of the province of the jury, to say that such evidence authorized them to find a verdict; because that it clearly appertains to his authority to give the legal effect of written evidence.

We believe, therefore, that there is no error in the judgment, in this case; and, therefore, it is affirmed.

Judgment affirmed.