MOSES WANZER, PLAINTIFF IN ERROR,
v.
TULLIUS C. TUPPER AND JOHN H. ROLLINS, UNDER THE FIRM OF TUPPER & ROLLINS
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The Circuit Court for the Southern District of Mississippi held that a holder of an inland bill of exchange could not recover against an indorser without first obtaining a regular protest for non-payment. The Supreme Court reversed, holding under Mississippi law that an indorser could be sued for the amount due upon proof of default and notice, with protest required only to recover the additional five percent statutory damages provided by the state statute.
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Mr. Chief Justice TANEY delivered the .opinion of the-court.
In this case, the .Circuit Court for the Southern District of Mississippi decided, that the holder of an inland bill of exchange drawn and accepted in that State was not entitled to recover against the indorser, unless the bill had been regularly protested for non-payment. This decision was made before the case of Bailey v. Dozier, reported in 6 Howard, 23, came before this court. In that case the court held, upon full consideration of the question, that, under the statute of Mississippi, the holder of an inland bill of exchange was entitled to recover of an indorser the amount due on the bill, with interest, upon giving the customary proof of default and notice; and that the protest was necessary only for the purpose of enabling him to recover the five per cent, damages given by the act. The case of Bailey v. Dozier must govern this, and the judgment in the Circuit Court is therefore reversed.
Order. This cause came-on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.