1 Blackf. 181 | Ind. | 1822
Assumpsit by Pegg, the assignee, against Hanna, the assignor, of a sealed note. There are three counts in the declaration: one upon the assignment; one for money laid out and expended ; and one for money had and received. There was a general demurrer to the first count, and judgment for the defendant below. To the other counts, the defendant pleaded the general issue. It appears from the record that Julian and Jones, on the 27th of November, 1818, executed a note under seal for the payment, of 383 dollars to Hanna or order, payable 12 months after date, for value received; that Hanna for value received assigned the note to Pegg, who assigned it to Cory; that on the 22d of January, 1820, Cory commenced a suit in
The objections to the first count are: — that the consideration for which the assignment was made is not set out; and that the facts of due diligence are not averred with sufficient particularity. We think that the first exception is not tenable. Our statute, making notes and bonds assignable, not only authorizes the assignee in his own name to sue the maker, but also to sue the assignor upon the maker’s default. There seems to be no good reason why the assignment, like the note, may not be considered the contract, and as importing prima facie a good consideration. It is true, an averment of the consideration of an assignment is, in Virginia, held to be necessary; Hall v. Smith, 3 Munf. 550; but, in that state, the statute does not give an action to the assignee against the assignor, and, of course, the assignment cannot be considered the foundation of the suit. The
The next question presented for our consideration, is, Were the suit by Cory against the makers of the note, and the note itself with the assignment, admissible evidence under the money counts in the declaration? By the custom of merchants, bills of exchange may be declared on as specialties: they import on their face a good consideration, and, in. actions founded on them, no averment of a consideration is necessary. In England, the statute of Anne extended this custom to promissory notes; but, in that country, the holder of a bill or note may waive this privilege, and, instead of declaring on the iñstrument itself as a contract and substantive cause of action, he may, where there is a privity of contract, declare on the original consideration for which the bill or note was given or indorsed, and under a count for money paid, or for money had and received, give the bill or note in evidence. Chitt. on Bills, 374 — 380.— Ford v.
Whether the possession of the note by the plaintiff, after the special assignment of it to Cory, was of itself prima facie evidence of his right to it, is a question which has been differently decided. 1 Ld. Raym. 742. — 1 Dall. 193. — 1 Yeates, 94. — 7 Cranch, 159. The last case we have met with on the subject, is that of Dugan v. The U. States, 3 Wheat. 172, 183, where the Court says: “If any person who indorses a bill of exchange to another, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence,, as the bona fide holder and proprietor of such bill; and shall be entitled to recover, notwithstanding there may be on it one or more indorsements in full, subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsees, whose names he may strike from the bill, or not, as he may think proper.” This opinion appears to us to be correct
The judgment is reversed, with costs. Canse remanded, with directions to the Circuit Court to render judgment for the plaintiff below, with his assent, for the amount of the note with interest from the time it became due up to the time when the judgment shall be rendered; or, if such assent be not given, then there must be a new assessment of damages.
Thus, in an action by the indorsee against the indorser of a promissory note, indorsed and discounted for the maker’s accommodation, there was a mis-description of the note in the count on the indorsement; and a question arose, whether the note was sufficient proof of the count for money lent and for money had and received. The Court held, that a note, or an indorsement, is prima facie evidence against the maker, or indorser, under a count of this nature, on the ground that the note warrants a presumption that the maker, or indorser, has received the contents of the note; hut that as it was there proved, that the money for whieh the note was made had been paid, not to the indorser, but to the maker himself, anff for his sole use, the presumption arising from the mere act of indorsement was destroyed, and the defendant below was entitled to judgment. Page's .Adm'rs v. The Bank of .Alexandria, 7 Wheat. 35. So, in assumpsit against one of the makers of a promissory note, payable by four instalments, the declaration contained, beside the money counts, one count on the note, which stated the last instalment to be payable on the 21st of June, instead of the 24th of June, as in the note. Upon an objection being made to the plaintiff’s right to recover, as there was a variance between the note and declaration, it was contended that he could recover on the money counts, and that the note might be give» in evidence for that purpose. It appeared, however, that the defendant had signed the note as a surety for the other maker; that no consideration had passed to him from the plaintiff; and that they had had no dealings together. Dallas, C. J. said, It is clear that the variance, on the first count is fatal; and 1 am of opinion that the plain?. tiff cannot recover on the money counts. The presumption of the existence of a debt, which would otherwise arise, is repelled in this case; for it has been shown that there was no antecedent dealing, and that the defendant attached his signature as a surety only. There was no antecedent debt, neither was there any consideration between the parties to this action, and the plaintiff cannot support it. — The rest of the Court concurred. Wells v. Girling, 8 Taunt. 737. In the nisi prius report of this case, 1 Gow’s R. 21, the English authorities on the subject may be found collected in a note by the reporter. Vide also State Bank v. Hurd, 12 Mass. 182. — Burdick v. Green, 18 Johns. R. 14. — Butler v. Wright, 20 Johns. R. 367. It has been held, that where there is no privity, as in the case of an indorsee against the acceptor of a bill or maker of a note, the money counts cannot be resorted to, unless an., express promise to pay can be proved, Johnson v. Callings, 1 East, 98. — Bar-tow v. Bishop, Ibid. 432. — Houle v. Baxter, 3 East, 177. — Waynara v. Bend, 1 Camp. 175, — Exon v. Russell, 4 Maule & Selw, 50§. Sed vide Pierce v. Crafts.
1 The maker’s having taken the oath of an insolvent debtor, is not the only evidence of insolvency. The plaintiff may show to the jury, by othtjr testimony, that the maker is in faet insolvent, and that a suit would have been wholly unavailing. Violett v. Patton, cited in the text. — Brown v. Ross, 6 Munf. 391. — Youse v. M'Creary, May term, 1829, post.
Acc. Norris v. Badger, 6 Cowen, 499.-3 Kent’s Comm. 79.
The assignor is liable for the amount received for the assignment, with interest, and the costs of the suit against the maker. The amount of the note is prima facie evidence of the price paid for the assignment; but the assignor may show the real consideration. Youse v. M’Creary, supra.