Summit County Bank v. W. F. Smith & Co.

1 Handy 575

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1855
• Status: Published

Opinion

Gholson, J.

This is an action on a bill of exchange, for its amount and interest, and also for statutory damages and costs of protest. The pleader sets out a cause of action on the bill for the amount payable on its face and interest, under Section 122 of the Code; and then sets out another and distinct cause of action for the damages and protest. To this second cause of action, there is a demurrer.

Standing alone and without reference to the first cause of action, the facts to sustain the second are not sufficiently stated. To state them sufficiently, the bill, from the non-payment of which the damages arose, would have to be set out; and this clearly shows, that a claim for the damages, disconnected from the claim on the bill, is unnecessary. The Statute allowing the damages plainly contemplates, that they are to be recovered in an action on the bill; they become a part of the same cause of action, and need not be separated any more than the claim for interest.

The demurrer will be sustained, and the petition can be amended forthwith, by striking out the figures 1 and 2, separating the causes of action. The answer already filed, denying notice, will still be a perfect answer, and the case will at once stand for trial.