Brient v. Waterfield

Weight, J.,

delivered the opinion of the Court.

There is no error in this judgment. The plaintiffs are entitled to final judgment on the first day of the November Term, 1857, the. defendants having filed no plea. The declaration had been duly filed at the July Term previous. The case of Morrow vs. Malone et al., at the present term, and Byrd et als. vs. Bank of Tennessee, 2 Swan, 43, are authority in this case.

The act of 1835, ch. 5, § 5, (C. & N. Rev., 210,) does not change the previous law and practice upon this subject.

It is next objected, that the judgment is erroneous, because charges of protest are embraced in it; and that this being a suit between the makers and payees of the note, no protest was necessary, or could legally be made, and that, therefore, the notary’s fees and charges of protest could not be recovered. It is not required here, that we should decide whether, as between the maker and payee, a protest is proper. Undoubtedly-the note might have been legally protested to charge an endorser. Act- of 1820, ch. 25, § 4, (C. & N. Rev., 503.) There is no bill of exceptions filed, .and for anything that appears in this record, the note may have been- endorsed, and the protest proper to charge the endorsers; and in that state of the case,, if the plaintiffs took up the note, they must have paid the notary’s fees, and would be entitled to recover them of the defendant. This we are authorized to presume in favor of the judgment of. the Circuit Court. The judgment may le right. It was incumbent upon the defendants to set forth a state, of facts, showing it is. wrong. This is not done.

Judgment affirmed.