Whiting v. Walker

41 Ky. 262, 2 B. Mon. 262, 1842 Ky. LEXIS 14

• Court: Court of Appeals of Kentucky
• Decided: April 20, 1842
• Status: Published

Opinion

Chief Justice Robertsoh

delivered the Opinion of the Court.

In a petition and summons brought under our statute of 1837, (Session Acts ’41,) by the payees against the drawers of a domestic bill of exchange, drawn and accepted in New Orleans, the jury impanneled to try several issues, was instructed to find as in case of a non-suit, because the only evidence of non-payment and notice thereof was a notarial protest; and thereupon the plaintiffs discharged the jury and voluntarily suffered a judgment of nonpros. That judgment they now seek to reverse.

As, according to the mercantile law, a protest of a domestic bill is superfluous and unauthoritative, and lheref°Fe no proof of the alleged dishonor of the bill, (Taylor vs The Bank of Illinois, 7 Mon. 576,) and as moreover we cannot judicially presume that this is not als0 ^oca^ ^aw Louisiana; consequently we could not doubt that the law was against the plaintiff, as decided by . T “ r . . 1 the Circuit Judge. And we are of the opinion that the statute of 1837, supra, only makes a protest admissible as evidence when,-by the lex loci, it was essential to the liability of the party sued.

If a plaintiff voluntarily suffer a nonsuit, _ he waives all objection to any opinion of the Court which may have induced it and cannot complain theieof as error in this Court. Owsley cf- Goodloe for appellants; Husbands for appellees.

But had the instruction been erroneous, the plaintiffs waived the right to a revision of it in this Court by submitting to a nonsuit. Their only remedy now is another • suit in a Court of original jurisdiction.

The judgment must therefore be affirmed.