Holmes v. Preston

Citations

• 70 Miss. 152

Syllabus

<p>1. Bill of Exchange. Irregular indorser. Liability. Evidence.</p> <p>In an action on a bill of exchange against one who was not payee, and who is not shown to have been holder thereof, or to have had any connection with it except to write his name on the back, the mere introduction of the bill and the protest thereof for non-x>ayment by the acceptor, will not entitle plaintiff to judgment. To fix liability on such defendant, there must be additional evidence showing the capacity in which he indorsed the paper, and notice of dishonor if his liability is secondary. Thomas v. Jennings, 5 Smed. & M., 630.</p> <p>2. .Jeofails. Verdict. Insufficient evidence. Pleading. Gode, 1892, § 746.</p> <p>The statute of jeofails cures only defects of pleading. Where the facts are made of record by demurrer to evidence, they must show a. right of recovery in order to sustain a verdict for plaintiff. If such right does not appear, after verdict, it will not avail plaintiff that the declaration, being insufficient, was not demurred to, and that the evidence fully supports the allegations that are made. Reaves v. Dennis, 6 Smed. & M., 89.</p> <p>3. Practice. Inadvertence of counsel. Opportunity to supply evidence.</p> <p>The substantial rights of litigants should not be lost by the mere indiscretion of counsel when discovered during the progress of the ferial, and application to avoid its effect is promptly made, which, if granted, will result in no delay or injustice to the opposite party. Where, because of failure to make certain proof, a demurrer to evidence is interposed, and plaintiff seasonably applies for leave to make the further proof, it is error to refuse the application and compel a joinder in the demurrer.</p>