Jaccard v. Anderson
Supreme Court of Missouri
Appeal from, St. Louis Court of Common Pleas. I. An issue in pleading can be made only by the averment of a fact by the plaintiff and the denial thereof by the defendant. The testimony of witness King must have been taken on an issue thus formed, to be admissible after his death on the second trial below.
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Appeal from, St. Louis Court of Common Pleas. I. An issue in pleading can be made only by the averment of a fact by the plaintiff and the denial thereof by the defendant. The testimony of witness King must have been taken on an issue thus formed, to be admissible after his death on the second trial below. The words “ that said note was not protested at defendant’s instance and request, he waiving protest,” do not constitute an averment of demand or excuse for failure to demand payment of the maker. (32 Mo. 188, this case.) There was then, on the first trial of this cause, no averment of…
1Opinion of the CourtHolmes, Judge
On a former occasion this case was reversed in this court, upon a defective petition, and was remanded with leave to amend. It then contained an averment that “ at defendant’s *94instance and. request the note was not protested, he waiving protest.” On the question whether this was in law a waiver of demand, the court expressed no opinion ; but it was said that the question of pleading was distinct from the question of the effect of evidence bearing upon a waiver of protest, and that there must be an averment of a demand, or of facts which could excuse or be equivalent to it, in order to show…
2Cases cited6 opinions
- Thornton v. WynnSupreme Court of the United States · 1827
- Davis v. StateSupreme Court of Alabama · 1850
- Coddington v. DavisNew York Supreme Court · 1846
- Mansfield Railway, Light & Power Co. v. KinerOhio Court of Appeals · 1913
- Union Bank of Georgetown v. MagruderSupreme Court of the United States · 1833
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3Cited by20 opinions
- State v. AbleSupreme Court of Missouri · 1877
- State v. AaronMissouri Court of Appeals · 2007
- Parsons v. ParsonsSupreme Court of Missouri · 1870
- Davis v. KlineSupreme Court of Missouri · 1888
- Welp v. BogyMissouri Court of Appeals · 1925
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