Moore v. Clements

¶1— The defendant in error brought his action against the plaintiff in error, (in the Circuit Court of Bibb,) on a bill of exchange of which he was drawer, payable at the Bank of the State of Alabama, to David R. Boyd, which, bill having passed through several hands, became the property of the defendant, by a regular chain of endorsements. On the trial, the judge was requested to charge the jury, that on a protest for non-payment, the defendant in error was only entitled to recover five per cent, damages, which was refused ; the Court instructing the jury, that ten per cent, damages were recoverable.

¶2The Court were also requested to instruct the jury, that a demand of the Cashier of the Bank at the .counter of the Bank, was not a sufficient demand, and if so, it was necessary to prove the demand was made during banking hours; which instructions were also refused by the Court.

¶3In regard to the damages recoverable on such a bill, after a protest for non-payment,’ it is clear that the instruction of the Court was correct, and that the first section of the act of the twenty-first of December, eighteen hundred and thirty-two, “ to reduce the damages on bills of exchange, purchased by the Bank of the State of Alabama, or either of *229its branches,” relates only to bills of which the bank, or one of its branches, is the proprietor.*

¶4It appears that the protest for non-payment was before the jury, which by statute, is made evidence of the facts of presentment, non-acceptance, nonpayment, &c.,† and dispenses with the introduction of further proof, as to these points, by the defendant in error. The latter instructions asked, then, unless it appeared, that there was evidence opposing the facts and inferences, deducible from the protest, were immaterial, and might well have been refused,

¶5Judgment affirmed.