C. Yale, Jr., & Co. v. Ward's

Citations

• 30 Tex. 17

Syllabus

<p>This court has held, that it will not take judicial notice of the division of other States into towns, cities, &c, and that knowledge of the fact that any place is within a different State of the Union must be derived from the allegations of the parties or the evidence contained in the record. (Andrews v. Hoxie, 5 Tex., 185; Paschal’s Dig., Note 930.)</p> <p>The 1st section of the act of 20th March, 1848, establishing the liability of drawers, &c., reads as follows: “ The holder of any bill of exchange or promissory note, assignable or negotiable by law, may secure and fix the liabilities of any drawer or indorser of such bill of exchange; and every indorser of such promissory note, without protest or notice, by instituting suit against the acceptor of such bill of exchange, or against the maker of such promissory note, before the first term of the district court to which suit can be brought after the right of action shall accrue, or by instituting suit before the second term of said court after the right of action shall accrue, and showing good cause why suit was not instituted before the first term next after the right of action accrued.” (Paschal’s Dig., Art. 229, Notes 283, 290.) This section requires the suit to be against the maker or acceptor, not the drawer or indorser.</p> <p>The 4th section of the act enabled the holder to fix the liability of an instrument between merchant and merchant by protest and notice. (Paschal’s Dig,, Art. 232, Note 293.)</p> <p>To bring suit was the general rule, the other modes the exceptions. Therefore, if the suit was not brought at the first term, the reasons why should be averred in the petition. (Paschal’s Dig., Notes 283, 290.)</p> <p>It is averred that the bill was protested, but there is no averment that the bill was between merchant and merchant, their factors or agents. There is a failure, therefore, to bring the case within the exception of the statute allowing the liability to be fixed according to the law merchant