the plt's. proving that when the money was demanded of the deft., for which the note was given, he acknowledged the debt. In neither of these cases could the written contract be received in evidence. Cн. 20. Art. 21. 58.-1 Johns. 16. But in Rolleston v. Mebbert, where the plt. took a 3 T. R 406, defective bill of sale of a ship at sea, the court held, that and 1 East though this failed them, they could not resort to their common R. 94. law liens. Our courts do not take notice of foreign stamps. Randall v. Rensselaer; but 2 Johns. R. 423, act of Congress. 17. So the plt. need not declare on a promissory note, Bull. N. P. but may for money lent, and give the note in evidence; but 137, Story not if he take a bond; for a specialty or deed merges the con- . Atkins. 1 Stra. 719, sideration. The 3 & 4 Anne only adds a further remedy, 726, same and does not take away that which before existed, at common case. law. A note is valid, though stamped with a stamp of superior value. Robinson's case, 2 Burr. 1177. bill, or gave East 177. Vaughan. 18. But if there be a note or bill, and the deft. is dis- Chitty 284.3 Esp. 155.-charged by the plt's. laches or want of due diligence, as to 4 Esp. 159. demand of notice, or is discharged by alterations in either &c. the plt. will not be allowed to resort to his common counts. And, generally, where a valid note or bill has existed, it must be relied on. And, also, where there is no privity between 1 East 98. the plt. and deft., as where an endorsee sues, the original con- Johnson v sideration of the bill or note is no ground of action. There Collings.-3 is no privity between the acceptor and endorsee of a the maker and endorsee of a note. Chitty on Pl. 10. 19. But in Grant v. Vaughan, where the defendant 3 Burr. 1516, a cash note thus: London, Oct. 22, 1763. Pay to ship For- Grantv. tune, or bearer, £500. Directed to one Asgill, the deft's. banker; and this note was to one Bicknell, a husband of a ship of the deft. Bicknell lost the note: A found it, and four days after it was payable, in London, came to the plt's. See 13 John. shop, at Portsmouth; and he, bona fide, bought the note, and R. 238. for a valuable consideration. Deft. finding the note was lost, sent word to Asgill not to pay it. The plt. sued, and bis first count was on an inland bill: his second, assumpsit for money had and received; and on this second count, he recovered; and the court held (sixth point in the action) clearly, this action lies for money had and received, in favour of the bearer, bonâ fide, of a bill or note, payable to bearer. Judgment for the plt., Grant, upon the ground, if A draw a bill or note in favour of a bearer, it is evidence of money had and received to the bearer's use. Yet, what privity is there between the bearer and drawer of such a note? And also, that it is a question of law, whether a note or bill is negotiable or not; that Bicknell, himself might undoubtedly have brought 15. s. 1. this action; and now the bearer may bring it, as for money re See Ch. 1, a. CH. 20. Art. 21. 1 East 104, Johnson v. Collings. ceived to his use. Many cases were cited by the court, in support of this action. The modern rules of proof, as to lost bills, notes, or checks which are sued. 2 Phil. Evid. 15, 16. The plaintiff, who sues on a note, as bearer, must prove the maker's hand-writing, and the endorsements he states in his declarations; and if the note has been lost or stolen, and afterwards negotiated, the holder must shew, if he has received notice of such proof being required, that he received it bona fide, for a valuable consideration, cites Grant v. Vaughan, and Peacock v. Rhodes. Phillips adds, if the plt's. title, as holder, is brought into suspicion by his witness, he must prove the consideration, though no notice has been given to that effect; but if no suspicion arise on the plt's. case, he will not be obliged, even after notice, to prove the consideration, until it has been impeached, cites 4. Taunt. 114, &c. When the plt. has established a prima facie case, then it remains for the deft. to impeach his title; and until he has made the title suspicious, by shewing that the note was lost, or obtained by force or fraud, he cannot, merely by giving notice to prove the consideration, cast the burden of proof on the plt., but the deft. cannot produce evidence to impeach the plt's title, without having given previous notice to him of such intention. Dunlap says, the general rule is, that the endorsee, or holder, of a bill or note, payable to bearer, or endorsed in blank; or of a check, is prima facie, to be deemed the rightful owner of it, and he need not prove his title to it, unless circumstances of suspicion appear, as that it has been lost, or stolen, &c. cites Miller v. Race, 1 Burr. 452, fully stated, Ch. 76, a. 2, s. 10; case of a bank note lost by robbery, the bona fide receiver of it recovered against the bank, in trover, as for money; cites Cruger v. Armstrong & al. 3 Johns. Ca. 5 was a case of a check, sufficiently stated, Ch. 50, s. 16; cites too, Conroy v. Warren, there stated; 13 Mass. R. 160 was the case of Brown v. Gilman & al. sufficiently stated Ch. 20, a. 8, s. 2, cited 2 Dallas 146; cites also, 6 Mass. R. 453, was Bayley & al. v. Taber & al., sufficiently stated, Ch. 20, a. 11, s. 11; 5 Bin. 479, Holme v Karpser. What is cause of suspicion is in each case a question of evidence. On the common counts, a note payable to bearer, is evidence (2 Phil. Evid. 16) of money had and received by the deft. the maker, for the plt's. use, 12 Johns. R. 90, Pierce v. Crafts, need not prove any debt due from the maker to the bearer, other than the note proves. 20. In this case the court would not allow the acceptance of a bill was evidence of money had and received to the holder's use on such a count by an endorsee against such acceptor. See Ch. 9, a. 2. CH. 20. Art. 21. 21. In this case of a bill drawn by Levisy & Co. in favour of John White, the drawers knew he never existed. It was held, an innocent endorsee, for a valuable consideration, might recover against the acceptor, knowing the payee was a 1 H. Bl., in fictitious person, as on a bill payable to bearer, but not as for Gibson v money paid &c. by this endorsee to the use of the acceptor. 625-3 East Though this last point was not expressly decided, it appeared 177. to be the opinion of the court; and p. 602, Eyre C. B. said, it must be a very special case to support such assumpsit. Minet 569 to Israel v. Ch. 9, a. 18, 276.-14 East 22. A owing B for brokerage, and B owing C for money 1 H. Bl. 239, lent, B directed A to pay what he owed him to C, as a secu- Douglas.— rity, thereon C lent B a further sum. A accepted B's order, 2 Phil. Evid. and then refused to comply with it. Held, C might sue A for 14, 15. See money had and received, and Gould J. said, "if my debtor ten- s. 6, 9.der me money which I give back to him, and tell him to pay it 12 Johns. R. to another, he then, in point of fact, receives money to the use of the other." Wilson J. dissented as to money had and received, and thought no action would lie for money had and received, but where money had been actually received. As to averring second and third not paid &c. Salk. 130; 1 Ld. Raym. 810; 1 Cranch 418, 419. 23. One partner may endorse a note given to the partnership, in the partnership name; and thereby assign the interest of it to himself, and in his own name may maintain an action against the maker of the note on such an endorsement, but it is conceived not against the endorsers, as in that case the plt. would be named one of the defts. 582. 1 Caines' R. 505, Kirby a Cogswell. Robertson. 24. A subsequent promise by the deft., whether drawer or 7 East 231, endorser to pay, is evidence of presentment to the maker or Lundie v. drawee for payment, and of notice to the deft.; then no spe- Chitty 356, cial count is necessary. If in making a note the date be mis- 344, 371. taken it may be corrected in the declaration. -6 T. R. 659. A note made by an agent may be stated to have been made 1 H. Bl. 313. by the principal, as that is the legal operation, or by D by one -12 Mod. E, his agent in that behalf on at made &c., And if 346.--Chitty by an agent it is fatal to declare the note or bill was subscrib- 345. $25. If the endorsee of a bill discharge the acceptor, hav- 6 Mass. R. 85, ing no funds in his hands of the drawer, this is no plea in an Sargent v. Appleton. action against him. $26. Defence. All the actions on bills &c. are founded on contracts. 1. The grounds of defence; defective statements of the cause of action in the plt's. declaration, in regard to VOL. I. 56 CH. 20. which the deft. may plead various pleas in abatement, or deArt. 21. mur specially for want of form in the declaration, or demur generally, because it is not sufficient in substance to entitle him to judgment. Numerous indeed may be the pleas and demurrers on these grounds, but in practice they long have been very few. The plea generally is, that the deft. never promised, though there may be special pleas, as accord and satisfaction, payment, statute of limitation, bankruptcy, tender, infancy, alienage, discharges under insolvent acts, a release, &c. found under their respective heads, or among pleas in assumpsit generally, 27. The deft. may deny, that the instrument declared on was ever made or accepted, or endorsed, or that the deft. was ever party to the contract, or that the payment of the bill or note was ever demanded of the acceptor or maker; or if it was, that notice was never given thereof to the deft., that the contract was void or voidable for want of capacity in the deft. to contract, because a minor, married woman, &c. So the deft. may deny there was any consideration or aver it was illegal; so the deft. may deny the plt. is able in law to sue, because outlawed, an alien enemy or a bankrupt &c. So the deft. in his defence may allege a set-off, a former recovery &c. 28. Many of these matters of defence are only in evidence, as whenever the deft. denies the bill or note was made accepted or endorsed at all, or in a manner legally binding; but whenever the deft. admits there was once a legal contract, and means to defend himself by saying it has been performed or discharged, this matter he may plead specially, though not often necessarily so, as the plea never promised forces the plt. to prove his right of action, and this right is often gone by payment and performances in other ways. 29. Where a right of action once existed and has been specially discharged, as by bankruptcy &c. The matter of defence must be pleaded because discharged by matter in law, and so to be pleaded. § 30. In general, evidence in this case is the same as the evidence in other cases of simple contracts. There is, however, some evidence peculiar to bills and notes, and negotiable contracts in regard to considerations, demands of payment, notices and protests, damages, exchange, reexchange, &c. most of which has been noticed already. The evidence as a general rule must be according to the issue joined; to support an action against the acceptor of a bill or the endorser of a note, the hand writing of the drawer or maker need not be proved. The acceptance of a bill may be verbal or in writing; and if by an agent his authority must be proved, and to this purpose he is a witness. If one or more accept a bill condi tionally, his or their hand writing must be proved if disputed, and the condition must be proved to have been performed or the conditional event to have taken place and if a bill or note pass by delivery only, as when to bearer or endorsed blank, the delivery must be proved, and generally possession is this evidence. CH. 20. Art. 21. Chester. 20.-2 Phil. 31. The endorsee must prove the signature of each en- 1 T. R. 654, dorser he claims under, even against the acceptor, for it is Smith v. only by valid endorsements such endorsee is entitled to the 4 D & E. 30, bill or note, and if the acceptor saw the endorsement, or a 31-Peake drawer drew the bill payable to his own order, and himself Evid 27. endorsed it, it makes no difference. But the plt. need prove only such endorsements as he declares upon in his declaration, or insists on at the trial. An endorser by his endorsement admits the signatures of the drawer and of prior endorsers. As the law presumes the acceptor has a consideration for his ac- 3 T. R. 183. ceptance it is incumbent on him to prove the contrary, and each one by signing admits all the prior signatures necessarily on the bill or note, if he sign seeing the bill or note. Salk. 127. 32. A party to the bill or note when a witness or not. In 1 T. R. 296, 304, Walton this case the court laid down the principle very extensively, v. Shelly and held, that a person is not a competent witness to impeach See Ch. 90, a security to which he has given currency, and Lord Mansfield a. 10. said, the rule is, "that no party who has signed a paper or deed shall ever be permitted to give testimony to invalidate that instrument which he hath signed," though he is not interested in the event of the suit. This is the broadest ground that has been taken to exclude as a witness a party to a paper It is admitted to be a rule founded on public policy; but in the above case it was carried further than the reason of that policy goes. Hence, the broad rule in this case has been continually narrowed more and more by subsequent decisions. The leading idea was in Walton v. Shelly, that every man who is a party to an instrument gives credit to it. 33. Since the above decision it has been held, that in an 7 T. R. 62. action by an endorsee of a bill against the acceptor, the payee, Jourdaine v. Lashbrooke. become endorser, is a witness to prove the bill originally void; as that it was made in London instead of Hamburgh, and so void for want of a stamp. 34. So if the endorsee sue the acceptor, the drawer is a 4 Esp. 32.—~ witness to the acceptor's signature, though the defence be for- Chitty 305.gery. So in such an action the drawer of a bill payable to 5 Esp. 119. his own order is a witness to prove usury in discounting the bill; yet by his name he has sanctioned the bill, and the plt. is endorsee. 35. If the endorser of a note receive money from the ma- 7 T. R. 601.-ker to take it up, he is a witness for the maker sued by the Chitty 304, 305. |