Sect. 3. Of case on the trial. Thus, where the plaintiff declared on a promissory the counts note, and on a quantum meruit for work and labour, which was the sideration, consideration for which it was given, but the note not being duly and of the stamped, and a verdict having been taken generally for the plaintiff, on the con common counts. the defendant moved to enter a nonsuit-the court said, that although the note, not being stamped, could not be given in evidence, yet the plaintiff ought to have an opportunity of recovering on the other [364 count, and accordingly a new trial was granted; and in Wilson . Kennedy," where the same point was determined, Lord Kenyon said, that a promissory note is not like a bond, which merges the demand. It has also been decided, that it is not necessary to declare on a promissory note, but that in an action for money fent, the same may be given in evidence ; for the stat. 3 & 4 Anne, c. 9, which enables the plaintiff to declare upon the note, is only a concurrent remedy: and where a bill was drawn on an agent and made payable out of a particular fund, and consequently invalid, and the agent said he would pay it when he got money of the principal, it was held, that this was binding on him, and that if he got the money at any subsequent time, he was bound to pay the amount, and that it was recoverable as money had and received. Where, however, the party is discharged by alteration of the bill, &c. or, by the laches of the holder, the plaintiff will not be allowed to go into evidence on the common counts (1) and where a promissory note has been given for money due from the defendant to the plaintiff, who declares thereon, together with the money counts, he must prove the note to have been destroyed before he can have recourse to the money counts, if it appear that the money so claimed was that for which the note was given. (467) (1) If the drawer has been discharged from liability upon the bill by the laches of the holder, the latter cannot recover on a count for money had and received. Austin v. Rodman, 1 Hawks 195. (467) See Pintard v. Tackington, 10 Johns. Rep. 104, and other cases collected in the note to p. 185. But a recovery cannot be had upon a note lost, and not destroyed, if it had been indorsed before it was lost. Pintard v. Packington. See Freeman v. Boynton, 7 Mass. Rep. 583. Anderson v. Robson, 2 Bay's Rep. 495. Usher's Ex. v. Guither, 2 Harr. & M'Hen. Rep. 457. Margan v. Reintzel, 7 Cranch, 273. A note not negotiable within the statute, expressed to be for value received, may be given in evidence between the original parties under the money counts, if there be prof of a sufficient consideration. Smith v. Smith, 2 John. Rep. 235. But if no consideration appear on the face of the note, it is otherwise. Saxton v. Johnson, 10 John. Rep 418. And if such a note be transferred and an express promise be made to pay the assignee, he may maintain an action on the money counts. Surtees v. Hubbard, 4 Esp Rep. 204. Mowry v. Todd, 12 Mass. Rep. 281. Ante, 61. note. So between the assignor and his immediate assignee, an action on such counts may be maintained; hut not by a remote assignee against the assignor, for there is no privity between them Mandeville v. Biddle, 1 Cranch, 290. 298. A bill of exchange may be given in evidence in an action by the payee against the maker under the money counts. Cruger v. Armstrong, 3 John. Cas. 5. Arnold v Crane, 8 John. Rep. 79. A note payable to A. or bearer may be given in evidence in an action by the holder against the maker under the money counts. Pierce y. Crafts, 12 John. Rep. 90. So in an action by the indorsee against the maker. Ibid And in the counts The above rule does not in general apply when there is no privity Sect. 2. Of between the plaintiff and defendant, as between the indorsee and the on the conacceptor, of a bill, and the indorsee and the maker of a note, between sideration, whom, if the plaintiff cannot succeed on the count on the bill, and and of the there be no express promise to pay the amount, the common counts are in general of no avail. common counts. The instrument itself will, it is said, when duly stamped, in certain cases, be evidence in support of the counts for money lent, paid, had, and received, and that founded on an actual or supposed account stated; and those counts, when applicable, should therefore always be inserted in the declaration; but in a late case it was held, that a promissory note is only evidence under the money counts as between the original parties to it; a decision which appears to accord with the rule of law as to the assignment of choses in action, and may pro-[365] bably affect the authority of some of the decisions presently noticed. The court for money lent, it is said, is proper in an action at the suit of the payee of a bill against the drawer, and in an action at the suit of the payee of a bill against the maker, they being evidence of money lent by the payee to the drawer of the one, and maker of the other. It is also proper in an action at the suit of an indorsee against his immediate indorser. So a note in this form:-" 3d December, 1751, then "received of Mr. Harris, the sum of nineteen pounds, on behalf of my "grandson, which I promise to be accountable for on demand, witness "my hand, S. Huntbach,"-the grandson being an infant, was holden to be evidence in support of the court for money lent.* It has been said, that a bill or note is prima facie evidence of money paid by the holder to the use of the drawer of the one, and maker of the other; and that a bill, when accepted, is evidence of money paid by the holder to the use of the acceptor; and if an indorser has taken up a bill, he may, having failed in his first count against the acceptor, on account of a variance, recover under the count for money paid." But in another case Eyre, Chief Justice, said, that the presumption of evidence Johnson v. Collings, 1 East, 98. Barlow v. Bishop, id. 434, 5. Whitwell v. Bennett, 3 Bos. & Pul. 559. Houle v. Baxter, 3 East, 177. 4 Waynam v. Bend, 1 Campb. 175. See Wells v. Girling, 1 Gow. Rep. 22, and cases there cited. f See the last note but one.. * See Lord Kenyon's observations in Johnson v. Collings, 1 East, 103, 4, and in Barlow v. Bishop, id. 434, 5. h Per Lord Ellenborough, in Marshall v. Poole, 13 East, 100. Ex parte Mills, 2 Ves. jun. 295. Storey v. Atkins, 2 Stra. 725. Clerke v. Martin, Ld. Raym. 758. i Kessebower v. Tims, K. B. 22 Geo. 3. Harris v. Huntbach, 1 Burr. 373. 1 Bayl. 164. m Id. 165. Le Sage v. Johnson, Forr. Rep. 23. this last case the court overruled the decision in Waynam v, Bend, 1 Campb. Rep. 175. An indorsement "without recourse to the indorser" is not evidence in an action by the indorsee against the indorser under a count for money had and received. Welch v. Lindo, 7 Cranch, 159. But a general indorsement is.-State Bank v. Hurd, 12 Mass. Rep. 172. A promissory note is legal evidence, in an action for money paid, if nothing appear on its face to render it void: though it may be void from circumstances dehors the note. Myers v. Irwin, 2 Serg. and Rawle, 368. CHITTY ON BILLS. U u on the con Sect. 2. Of which a bill of exchange affords, has no application to the assumpsit for the counts money paid by the payee or holder of it, to the use of the acceptor; and sideration, that it must be a very special case which will support such an assumpand of the sit. In the case of Cowley v. Dunlop," Lawrence, J. expressed opin common counts. ion that the drawer of a bill, who is obliged to take it up after having negotiated it, is confined to his action on the bill to recover against the acceptor. If the drawee, without having effects of the drawer in his hands, accept and pay the bill without having it protested, he may recover the amount in an action for money paid, laid out, and expended, [366] to the use of the drawer ; though it is usual to declare on the express or implied promise to provide for the bill at maturity, or to indemnify." (1) It has been holden, that a bill, as well as a note, is prima facie evidence of money had and received by the drawer or maker to the use of the holder; and an acceptance is evidence of money had and received by the acceptor to the use of the drawer." But it is doubtful whether the indorsee or holder can use the bill against the acceptor as evidence under this count. And it seems now settled, that the plaintiff can in no case recover under this count, unless money has actually been received by the party sued, and for the use of the plaintiff. (2) If the indorsee of a bill of exchange, who has received a navy bill as a security to him till the bill of exchange is accepted, deposit such navy bill with the drawee, and the drawee receive the money upon it, he is answerable for the amount in an action for money had and received to the use of the indorsee, though he may have done nothing that amounts to an acceptance of the bill of exchange. In an action for money had and re • Gibson v. Minet, 1 Hen. Bla. 602. and see Howle v. Baxter, 3 East, 177. P Cowley v. Dunlop, 7 T. R. 572. Buckler v. Buttevant, 3 East, 72. Simmonds v. Parminter, Wils. 186. 9 Smith v. Nissen, 1 T. R. 169. Cowley v. Dunlop, 7 T. R. 576. Simmonds v. Parminter, 1 Wils. 188. Simmonds 7. Parminter, 1 Wils. 188. Vin. Ab. tit. Evidence, A. b. 36.-Ford v. Hopkins, I Salk. 283. y dale v. Lanchester, 1 Esp. Rep. 201.Bayl. 96. Brown v. London, Freem. 14. 1 Ventr. 153. S. C. Israel v. Douglas, 1 Hen. Bla. 239. Eaglechilde's case, Holt, 67. Vide Waynam v. Bend, Campb. 175. But in Bayl. on Bills, 164, it is laid down that the acceptance is evidence of money had and received by the acceptor to the use of the holder, and of money paid by the holder to the use of the acceptor, and an indorsement of money lent by the indorsee to the indorser. y Barlow v. Bishop, 1 East, 434, 5Waynam v. Bend, 1 Campb. 175. 2 Pierson v. Dunlop, Cowp. 571; and see 5 Esp. Rep. 247. 14 East, 590, ante, 193, 4. (1) A. the payee of a note for 1500 dollars indorsed it to B., who indorsed it to a bank by whom it was protested for non-payment. Due notice was given to A. who afterwards paid the bank 800 dollars in part and promised to pay the residue. The bank sued B as indorser and recovered judgment against him for the balance due on the note after de ducting the 800 dollars. B. afterwards paid 380 dollars to the bank who continued in possession of the note which had not been fully paid. Held, that though B. could not maintain an action on the note, as it had not been fully paid and was the property of the bank, yet that he might recover, the 380 dollars of A. on a count for money paid, laid out, and expended, &c. Butler v. Wright, 20 Johns. 367. (2) A bill or note is prima facie evidence under a count for money had and received against the drawer or indorser: but the presumption that the contents of the bill or note have been received by the party sued may be rebutted by circumstances, and a recovery cannot be had if it be proved that the money was actually received by another. Page's Adm. v. Bank of Alexandria, 7 Wheat. 35. the counts ceived by the holder of a bill against a person who has received a sum Sect. 2. Of of money from the acceptor to satisfy it, any defence may be set up on the conwhich could have been available, if the action had been brought against sideration, the acceptor himself." and of the common According to the case of Israel v. Douglas," an acceptance is evi- counts. dence of an account stated by the acceptor with the holder of the bill, and if there be a variance in describing the bill in an action by drawer, against acceptor, the former may recover on this count, although there be only one bill, and one item of account. C It is here proper to observe, that whenever the bill or note is not declared upon, it is not adduced in evidence as an instrument carrying with it the privileges it is otherwise entitled to in respect of its bearing [367] internal evidence of a consideration; but it is merely used as a piece of paper or writing, to found an inference only, in support of the money counts, which inference may be rebutted and destroyed by contradictory evidence on the part of the defendant; in which case the jury must draw, from the whole of the evidence, the conclusion of fact, that so much money was lent, paid, or had and received, or that an account was stated. a Redshaw v. Jackson, 1 Campb. 372. Israel v. Douglas, 1 Hen. Bla. 239. Sed vide Whitwell v. Bennett, 3 Bos. & Pal. 559. Johnson v. Collings, 1 East, 98. 65. с Highmore v. Primrose, 5 M. & S. d Story v. Atkins, 2 Stra. 725. Gibson v. Minet, 1 Hen. Bla. 602. payment of CHAPTER III. OF PAYMENT OF DEBT AND COSTS-JUDGMENT BY DE- WHEN the plaintiff has declared, the defendant, if he have any defence, pleads; if he have no defence, he settles the action by paying the debt and costs; or he lets judgment go by default; or obtains time by dilatory pleading. If the defendant wish to see a copy of the bill or note, the practice is stated to be, for a judge on summons, without an affidavit, to make an order for the delivery of a copy to the defendant or his attorney, and that all proceedings be in the mean time stayed." But the court or a judge will not grant leave to inspect a bill in order to ascertain whether it was duly stamped, or has been altered, as those are considered as unjust defences." Sect. 1. Of If the defendant be advised to settle the action in the first instance, staying pro- without incurring further expense, he may move the court, in which the ceedings on action is brought, for a rule, calling on the plaintiff to show cause why, the debt on payment of the debt and costs, all further proceedings should not be and costs. stayed or he may apply to a judge for a summons to the same effect. But where an indorsement was made upon a note by the payee, that if the interest was paid on stipulated days, during his life, the note should be given up; default having been made in payment of the interest, the Court of Common Pleas refused to stay the proceedings on payment of it, and costs. If the holder of a bill bring separate actions against the acceptor, the drawer, and indorsers, at the same time, the court will stay the proceedings in the action against the drawer, or any one of the indorsers, upon payment of the amount of the bill, and the costs of that particular action; but the action against the acceptor will only be stayed on the terms of his paying the costs in all the actions, he being [369]the original defaulter ; and therefore, where several actions have been brought, it may be the least expensive course for the acceptor to suffer judgment by default, in which case he can only be charged with the costs of the particular action against himself; and if in an action against the acceptor of a bill, an attachment be obtained against the sheriff for not bringing in the body, the sheriff may be relieved on pay. ment of the costs of that action only. Sect. 2. Of When the defendant has no defence, either on the merits or on the judgment pleadings, and is not able to pay the debt and costs in the first inby default, stance, he usually obtains time by pleading, or suffers judgment to go &c. a Tidd, 6th edit. 618. And see Odams v. Duke of Grafton, Steel v. Bradfield, 4 Taunt. 227.-2 d Smith v. Woodcock, 4 T. R. 691. Windham v. Wither, Stra. 515. Golding v. Grace, 2 Bla. Rep. 749. Tidd, 6th ed 562. See post, 423. The King v. Sheriff of London, 2 Bar & Ald. 192. f Id. Ibid. |