By the statutes of Mississippi, the holder of an inland bill of
exchange is entitled to recover of an endorser the amount due on
the bill, with interest, upon giving the customary proof of default
and notice. A protest is necessary only for the purpose of enabling
him to recover the five percent damages given by the act.
The case of
Bailey v.
Dozier, 6 How. 23, confirmed.
It was an action brought by Wanzer upon a bill of exchange drawn
by him upon Silverbury & Co., accepted by drawees, and endorsed
by Tupper & Rollins to Wanzer.
The cause was tried in the circuit court in November, 1846, when
the court refused to permit the bill, although admitted to be an
inland bill of exchange, to be given in evidence to the jury,
because there was no valid protest thereof.
It is unnecessary to state any further facts in the case.
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
In this case, the Circuit Court for the Southern District of
Page 49 U. S. 235
Mississippi decided, that the holder of an inland bill of
exchange drawn and accepted in that state was not entitled to
recover against the endorser, unless the bill had been regularly
protested for nonpayment. This decision was made before the case of
Bailey v.
Dozier, reported in 6 How. 23, came before this
Court. In that case, the Court held, upon full consideration of the
question, that under the statute of Mississippi, the holder of an
inland bill of exchange was entitled to recover of an endorser the
amount due on the bill, with interest, upon giving the customary
proof of default and notice, and that the protest was necessary
only for the purpose of enabling him to recover the five percent
damages given by the act. The case of
Bailey v. Dozier
must govern this, and the judgment in the circuit court is
therefore
Reversed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Mississippi, and was argued by counsel. On
consideration whereof, it is now here ordered and adjudged by this
Court, that the judgment of the said circuit court in this cause
be, and the same is hereby, reversed, with costs, and that this
cause be, and the same is hereby, remanded to the said circuit
court, with directions to award a
venire facias de
novo.
