Curtis v. Marrs

29 Ill. 508

• Court: Illinois Supreme Court
• Decided: January 15, 1863
• Status: Published

Opinion

Breese, J.

It must be presumed the court below, in deciding the questions in this case, had not before it the opinion of this court in the case of Rives v. Marrs, 25 Ill. 316, on the same bill of exchange. That suit was brought by the indorsee against the indorser, and this by the indorsee against the drawer of the bill. The bill was payable to Bart Whalon, and in the declaration it is described as payable to Bartholomew Whalon, without any averment that Bart and Bartholomew were one and the same person, or that the former was an abbreviation of the latter. We there said, and again say, we cannot judicially know that the former is an abbreviation of the latter, or that Bart is not a full proper name, hence the variance. It is, however, urged by appellee, that this objection cannot avail here, as it was not specifically pointed out in the court below, the objection there beingUo the introduction of the instrument in evidence on the ground, of variance, without stating in what the variance consisted. The cases cited by the appellee show the reason why the objection should be pointed out on the trial, to be that the party may obviate it if in his power. The reason of the rule does not apply here, as the objection could not be obviated on the trial, the declaration wanting the necessary averments under which to admit the requisite proof.

On the remaining point, the weight of authority seems to be that an indorser is a competent witness for almost all purposes except to impeach the genuineness of the bill, or its payment before suit brought.

The judgment is reversed, and the cause remanded, with leave to the plaintiff to amend the declaration.

Judgment reversed.