Bank v. . Carr , 130 N.C. 479 ( 1902 )

It was not error, to refuse to submit the issue tendered, (480) whether the defendant was accommodation indorser and surety. That inquiry should have no bearing in this action, for the plaintiff could sue any indorser without joining the maker or other indorser. Bank v.Carr, 121 N.C. 113; Moore v. Carr, 123 N.C. 426; Bank v. Lumber Co.,123 N.C. 26; and as there is only one defendant, the principle in Parishv. Graham, 129 N.C. 230, does not apply, for that was an adjustment of the rights of defendants as between themselves, as provided by The Code, sec. 424.

Exceptions 2 and 3 are to the sufficiency of the protest. This action is upon a promissory note in which the defendant was payee and indorser. The defendant admits that if this had been a North Carolina note, protest would not have been necessary, but contends that the note, bearing date Richmond, Va., and payable at no particular place, it was a Virginia contract, and notice of protest was necessary. But there was no allegation nor evidence as to the Virginia law, and that being lacking, the common law is presumed to prevail (Moody v. Johnson, 112 N.C. 798), under which it was not necessary to protest this note, and the issue on this point was immaterial and irrelevant.

Exceptions 4 and 5 are that the evidence was not sufficient to show that the plaintiff was a corporation. There was in evidence a properly certified copy of an amended charter, 1900, to plaintiff as a corporation to do a banking business, signed by the Auditor of Illinois, said copy being certified by the recorder of deeds of Chicago as a true copy from the records in his office, and further the deposition of the cashier that the bank had been duly organized and acting under said charter, and had been for ten years previous doing business under the previous charter of 1891; that from its first organization he had been connected with it; that it had regularly paid taxes as a bank, had never been (481) dissolved, and was still doing business as a bank. This witness also appended to his deposition a copy, as he testified, of the minutes of the meeting at which the plaintiff bank organized under said charter, of which meeting said witness was secretary, and said minutes contained a copy, under seal, of the original charter of 1891. This evidence was uncontradicted, and was sufficient to justify the court in charging that if the jury believed the evidence, to find the first issue, "Was the plaintiff a corporation duly organized and existing and acting under the laws of Illinois?" in the affirmative. There was certainly prima facie evidence at least of the corporate existence of the plaintiff.

Exception 6 is because the depositions were taken at the banking-house of the plaintiff, in which the witnesses were employees, but that was the place named in the notice, and it is not suggested that the defendant suffered any prejudice thereby. There was no error in refusing the motion to quash on that ground.

The other exceptions are for refusal of the court to strike out answers to certain questions in the deposition, because they were leading. This, like the permission to put leading questions to a witness before the jury, is a matter of discretion in the trial judge (Ducker v. Whitson,112 N.C. 50), and we do not see that the defendant has in anywise been injured by the form of these questions.

No error.

Cited: Woods v. Tel. Co., 148 N.C. 7; S. v. Cobb, 164 N.C. 422;Steel Co. v. Ford, 173 N.C. 195.

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