Long v. Crawford

Goi,ds.norough, J., delivered the opinion of this court. This action was brought by the appellants against the appellee to recover on the promissory note mentioned in the record. Besides the count on the note, the plaintiff’s declaration contained the indebitatus and common money counts. The defendant pleaded non assumpsit.

At the trial, the plaintiffs offered the evidence stated, ante 221, 222. The defendant then asked the court to instruct the jury, that upon the pleadings and all the evidence in the cause, the plaintiffs are not entitled to recover in this action. “1st. Because no sufficient evidence has been offered to the jury, from which the jury can find that notice of protest was given to the defendant according to law, so as to bind him for the payment of said note in the declaration mentioned and offered in evidence.” 2nd. “Because no sufficient evidence has been offered to the jury from which the jury can find that the defendant waived notice of protest.” 3rd. “Because, upon the evidence offered by the plaintiffs, and upon all the evidence in the cause, the plaintiffs were not the holders of the said promissory note at the time the same be ²²⁶ came due, and was protested for non-payment, and therefore have no right of action against the defendant, as endorser The court granted the third prayer of the defendant, and did not deem it necessary to decide upon the first and second prayers, inasmuch as the third prayer disposed of the case. To the granting of the third prayer by the court, the plaintiffs excepted.

The structure of the prayer in this case is similar to that in the case of Yingling vs. Kohlhass, decided by this court at the present term, (ante 148.) In that the court say, “this general prayer is followed by particular specifications of the points upon which the opinion of the court is asked, and the