Hilliard v. Bothell, 9 A. 99

Hilliard v. Bothell

9 A. 99 | N.H. | 1886

There can be no recovery upon the two items, amounting to $10, which did not become due until after the action was commenced. An action does not lie until a cause of action has accrued.

As to the checks, the case stands as it would if the plaintiff had loaned the defendant a like amount of money. Having treated and used the checks as money, the defendant is chargeable for them as money. Mathewson v. Powder Works, 44 N.H. 289, 291, 292, and cases cited; 4 Wait Act. Def. 470, 472, 474. In this view it is immaterial whether the plaintiff paid the checks before or after suit. They were simply evidence of the defendant's indebtedness to him, which might be procured after suit as well as before, without in any way affecting the rights of either party. The test is not the time when the checks were actually paid, but whether the loan of them to the defendant, upon the agreement and under the circumstances detailed in the referee's report, gave the plaintiff a cause of action against him at the date of the writ; and that it did we are entirely satisfied.

Judgment for the plaintiff accordingly.

CLARK, J., did not sit: the others concurred. *315