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Sect. 2. Of the

counts on the con

the common counts.

pro

and the indorser of a note, their liabilities and mises are stated to have been to pay on request, and not according to the tenor and effect of the bill'.

When there are several different bills or notes, a count on each may, with propriety, and indeed must be inserted in the declaration, however prolix it may thereby be rendered. The other points relative to the declarations on bills, notes, and cheques, will be found in the notes to the precedents.

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WITH respect to the common counts, although it is sideration, and of not usual, when there is a bill or note, to rely on them alone in pleading, yet they will in many cases supply the omission or defect of the count on the instrument itself; and the plaintiff will be at liberty to go evidence of the consideration for which he received it, and may recover on the common counts, if adapted to such consideration, in case he cannot substantiate, in evidence, the facts necessary to support the count on the instrument, or such count should be defective': taking care that the particulars of his demand state the consideration of the bill, &c.+; and perhaps to notice such demand in the counsel's opening of the case on the trials. Thus, where the plaintiff declared on a promissory note, and on a quantum meruit for work and labour, which was the consideration for which it was given, but the note not being duly stamped, and a verdict having been taken generally for the plaintiff, the defendant moved to enter a nonsuit-the court said, that although the note, not being stamped, could

* Bayl. 190.

Lane v. Smith, 3 Smith's Rep. 113.

* See the cases, Selw. N. P. 4th edit. 353, 4.-Bay). 163, &c— Manning's Ind. 75, 6.-Thompson v. Morgan, 3 Campb. 101, 2.Tyte v. Jones, 1 East. 58. n. a.-Alves v. Hodgson, 7 T. R. 241.— Tatlock v. Harris, 3 T. R. 174.-Claxton v. Swift, 2 Show. 501.Kyd. 58. 197.-Peake's L. of Ev. 219.-Bul. Ni. Pri. 139.—Payne v. Bacomb, Dougl. 651.—Brown v. Watts, 1 Taunt. 353.

* Wade D. Beasley, 4 Esp. Rep. 7.-Selw, N. P. 4th ed. 354. n. 62. * Paterson v. Zachariah, 1 Stark. 72.

467

counts on the con

sideration, and of

the common counts.

not be given in evidence, yet the plaintiff ought to Sect. 2. Of the have an opportunity of recovering on the other count, and accordingly a new trial was granted'; and in Wilson v. Kennedy', where the same point was determined, Lord Kenyon said, that a promissory note is not like a bond, which merges the demand3. It has also been decided, that it is not necessary to declare on a promissory note, but that in an action for money lent, the same may be given in evidence; for the Stat. 3 & 4 Ann. 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 got binding on him, and that if he 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; 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 lost or 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".

The above rule does not in general apply when there is no privity between the plaintiff and defendant, as between the indorsee and the acceptor of a bill, and

'Alves v. Hodgson, 7 T. R. 241.-Tyte v. Jones, 1 East. 58. n. a. Wade v. Beasley, 4 Esp. Rep. 7.

Wilson v. Kennedy, 1 Esp. Rep. 245.-Tyte v. Jones, 1 East. 58. n. a. Selw. N. P. 4th ed. 354.

3 See also ante, 123.

✦ Bul. N. P. 137, 8.-Story v. Atkins, 2 Stra. 719.—Ex parte Mills,

2 Ves. jun. 303.

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5 Stevens v. Hill, 5 Esp. Rep. 247.

Long v. Moore, 3 Esp. Rep. 155.

'Dangerfield v. Wilby, 4 Esp. Rep. 159.-Ante, 125, 6.

Sect. 2. Of the

counts on the con

the indorsee and the maker of a note', between whom, sideration, and of if the plaintiff cannot succeed on the count on the the common counts. bill, and there be no express promise to pay the amount, the common counts are in general of no avail.

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 probably affect the authority of some of the decisions presently noticed *.

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The count 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 note against the maker, they being evidence of money lent by the payee to the drawer of the one, and maker of the others. 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

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"Johnson v. Collings, 1 East. 98.-Bartow v. Bishop, id. 434, 5.— Whitwell v. Bennett, 3 Bos. & Pul. 559.-Houle v. Baxter, 3 East. 177.

Waynam v. Bend, 1 Campb. 175.

3 Id. ibid.

See Lord Kenyon's observation in Johnson v. Collings, 1 East. 103, 4, and in Barlow v. Bishop, id. 434, 5.

5 Per Lord Ellenborough in Marshall v. Poole, 13 East. 100.- Ex parte Mills, 2 Ves. jun. 295.-Story v. Atkins, 2 Stra. 725.-Clerke v. Martin, Ld. Raym. 758.-Carter v. Palmer, 12 Mod. 380.-Grant v. Vaughan, 3 Burr. 1516. 1525.-Smith v. Kendall, 6 T. R. 124.— Carr v. Shaw, ante, 419.-Bayl. 18. n. 1. 163.-Sed vide Cary v. Gerrish, 4 Esp. Rep. 9.

Kessebower v. Tims, K. B. 22 Geo. 3. Bayl. 164. n. b.

hokden to be evidence in support of the count for Sect. 2. Of the 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 a late case Eyre, Chief Justice, said, that the presumption of evidence which a bill of exchange affords, has no application to the assumpsit for money paid by the payee or holder of it, to the use of the acceptor; and that it must be a very special case which will support such an assumpsit. In the case of Cowley v. Dunlop, Lawrence, J. expressed an opinion 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, 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'.

It has been holden, that a bill, as well as a note, is prima facie evidence of money had and received by

'Harris v. Huntbach, 1 Burr. 373.

'Bayl. 164.

3 Id. 165.

Le Sage v. Johnson, For. Rep. 23.-Bayl. 164. S. C.

5 Gibson v. Minet, 1 Hen. Bla. 602.-and see Howle v. Baxter, 3 East. 177.

Cowley v. Dunlop, 7 T. R. 572.-Buckler v. Buttevant, 3 East. 72.-Simmonds v. Parminter, 1 Wils. 186.

7 Smith v. Nissen, 1 T. R. 269.-Cowley v. Dunlop, 7 T. R. 576.— Simmonds v. Parminter, 1 Wils. 188.

Simmonds v. Parminter, 1 Wils. 188.

Vin. Ab. tit. Evidence, A. b. 36.-Ford v. Hopkins, 1 Salk. 283.

counts on the consideration, and of the common counts,

Sect. 2. Of the the drawer or maker to the use of the holder'; and

counts on the con

the common counts.

sideration, and of 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 to be 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. 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 received by the holder of a bill against a person who has received a sum of money from the acceptor to satisfy it, any defence may be set up which could have been available, if the action had been brought against acceptor himself.

According to the case of Israel v. Douglas', an acceptance is evidence of an account stated by the acceptor with the holder of the bill.

It is here proper to observe, that whenever the bill or note is not declared upon, it is not adduced in evi

Bayl. 163. cites Grant v. Vaughan, 3 Burr. 1516.—Sed vide Waynam v. Bend, 1 Campb. 175.

2 Thompson v. Morgan, 3 Campb. 101.-Bayl. 163.

Johnson v. Collings, 1 East. 104.-Dimsdale 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.

+ Barlow v. Bishop, 1 East. 434, 5.-Waynam v. Bend, 1 Campb.

175.

5 Pierson v. Dunlop, Cowp. 571.; and see 5 Esp. Rep. 247.14 East. 590. ante, 252, 3.

6 Redshaw v. Jackson, 1 Campb. 372.

7 Israel v. Douglas, 1 Hen. Bla. 239.-Sed vide Whitwell v. Bennett, 3 Bos. & Pul. 559.-Johnson v. Collings, 1 East. 98.

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