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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 (53) an indorsement of money lent by the indorsee to the indorser.
But if it appear that at the time of accepting the drawee says he has nothing in his hands except a bill of the drawer's for a larger amount, but that he expects the drawer will remit, and will therefore take all risques upon himself, the acceptance will not be evidence of money had and re
that indorser the value of the bill: and upon a demurrer to the evidence, the court held that the plaintiff was entitled to recover under the counts for money paid and money had and received, and he had judgment accordingly.
Vere v. Lewis, 3 Term Rep. 182. This was a similar action to that of Tatlock v. Harris, except that the defendant was not one of the drawers, and there was no evidence that he received any value for the bill; upon which it was urged the plaintiff could not recover upon the money counts; but the court said the acceptance was evidence that he had received value from the drawers, and the plaintiff had judgment.
Thompson v. Morgan, 3 Campb. 101. Plaintiff drew on defendant, payable to plaintiff or order, defendant accepted it; plaintiff sued on the acceptance, but there being a variance between the bill as stated, and the real bill, plaintiff resorted to the money counts. Lord Ellenborough at first doubted, because indebitatus assumpsit would not lie on the bill against the acceptor; but it being pointed out to him that plaintiff was drawer and payee, so that there was no intermediate party between plaintiff and defendant, he admitted the bill as evidence under the count for money had and received; but he would not allow interest. Verdict for plaintiff.
(53) Kessebower v. Tims, B.R.E. 22 G. 3. Lord Mansfield held, that the indorsee of a note might maintain indebitatus assumpsit for money lent, against the person who indorsed it to him.
ceived by the acceptor to the use of the holder, unless there is proof that the larger bill is paid; (54) Or other money remitted;
With that proof it will. (54)
Proof that the drawee has received a remittance from the drawer specifically for payment of the bill, will also make the drawee, though he has not accepted the bill, answerable to the holder for money had and received, if he has done any thing which can be deemed a pledge to the holder for so applying it.
And proof that the acceptor's banker has received the money from the acceptor specifically for
(54) Whitwell v. Bennett, 3 Bos. and Pull. 559. This was an action by the indorsee against the acceptor of a bill. The bill was incorrectly stated, and the plaintiff was therefore obliged to resort to the money counts. The evidence was, that when the defendant accepted the bill (which was for 30%.), he said, that though the drawer had not remitted to him, he expected that he would, and that, as he had a bill of his for 80l. which would be paid, he would take all risks upon himself. Lord Alvanley directed a verdict for the plaintiff, with liberty to the defendant to move for a nonsuit. Rule nisi accordingly; and on shewing cause against this rule, it was urged, that if the bill for 80l. was paid, the defendant was liable as for money had and received; and that, as the defendant had not at the trial produced that bill, the presumption was, that it was paid. The court said, that if that bill was paid, the action for money had and received would be maintainable, on the ground of the defendant's specific appropriation of that money to the payment of the plaintiff's demand: but that the declaration being upon the bill for 30%. it was a surprise upon the defendant to call for proof of the non-payment of the other bill; and that therefore it would be too much to presume payment of that bill. Rule absolute.
the bill, will make the banker liable to the holder for money had and received, if he does any thing which can be deemed a pledge to the holder. (55)
Taking the bill as agent to the holder to receive payment thereon, if payment is offered, is such a pledge, and will make him answerable for money had and received, if the money is paid to him whilst the bill is so in his possession;
At least if it be owing to such possession that he receives the payment. (55)
But a specific remittance will not make the drawee, if he do not accept, answerable to the holder as for money had and received, unless there is something which can be deemed a pledge to the holder; without such pledge there is no privity between the holder and the drawee, and the drawer
(55) De Bernales v. Fuller, 2 Campb. 426. 14 East. 590. Plaintiff held a bill accepted by Puller, payable at defendant's, Puller's bankers: plaintiff sent the bill to his own bankers, and they, according to the course amongst bankers, sent it to defendant's. Puller found the bill was at defendant's, and sent the money there to pay it: defendant's clerk took the money, but refused to give up the bill, and defendant insisted on keeping the money for a debt Puller owed them. Plaintiff thereupon brought an action for money had and received. Lord Ellenborough thought it not maintainable, and the defendants had a verdict; but, on an application for a new trial, and cause shewn, the court held, that as defendants made themselves agents for plaintiff by taking the bill from his bankers, and as they would not have had the money paid them had they not had possession of the bill, they were not at liberty to say they did not receive the money for plaintiff's use: a new trial was accordingly granted, and plaintiff afterwards had a verdict.
is the only person who can call the drawee to account for the misapplication. (56)
An acknowledgment of the debt by the defendant will enable the holder to recover upon a count for the account stated. (57)
(56) Yates v. Bell, 3 Barnew. and Ald. 643. Ingram remitted 8007. to defendant to take up, amongst others, a bill for 7437., but that bill being returned dishonoured, defendant wrote to Ingram that he should carry the money to his credit: the bill coming back, the holder brought an action against the defendant for money had and received, on the ground that defendant was bound to apply the money to his bill. Abbot C.J. thought he was not, and nonsuited; and on a rule to shew cause why the verdict should not be entered for plaintiff, and cause shewn, the court held the nonsuit right, for there was no privity between plaintiff and defendant, unless defendant assented to apply the money as Ingram directed; if he did not follow Ingram's directions, he might be accountable to Ingram, but not to the plaintiff, and the rule was discharged.
Stewart v. Fry, 7 Taunt. 339. A bill made payable at defendant's was dishonoured for want of advice; the same day defendant received the money from Aspinall, the
to pay it, and he sent to plaintiff, who had presented it, but the bill was returned to Ireland. Aspinall called back the money, and defendant paid him: the bill came back to plaintiff, and he sued defendant for the money; the jury found for defendant, and on rule nisi for a new trial, the court held the verdict right, and discharged the rule.
S. P. upon a remittance to pay a common debt, Williams v. Everitt, 14 East. 582.
(57) Highmore v. Primrose, 5 Maule, 65. In an action against the acceptor of a bill, plaintiff was precluded from recovering on the special count because of a variance, but he proved that defendant had acknowledged the acceptance, and pleaded inability to pay; and upon the point reserved, the court held, this entitled plaintiff to a verdict on the count for the account stated, and he had judgment accordingly.
Against the very person also from whom he received the bill or note, the holder may sue for the consideration upon which the bill or note was given.
For, in general, a bill or note is (58) no satisfaction of any debt or demand for which it has been given; it is only primâ facie evidence of payment, rendering it necessary that the party receiving it, should (59) account for it, before he will be entitled to recover the consideration.
(58) Puckford v. Maxwell, 6 Term Rep. 52. The defendant having been arrested by the Plaintiff for 80l., gave a draft for 45., and promised in a few days to settle the remainder, on which the plaintiff consented to his being discharged out of custody. The draft was dishonoured, and the defendant was again arrested on the same affidavit. On rule to shew cause why he should not be discharged out of custody, and cause shewn, it was urged, that the draft, having been accepted as part payment, could not be treated as a nullity. But per Lord Kenyon: In cases of this kind, if the bill which is given in payment, do not turn out to be productive, it is not that which it purports to be and which the party receiving it expects it to be, and therefore he may consider it as a nullity and act as if no such bill had been given. These questions have frequently arisen at nisi prius, where they have always been determined the same way. Rule discharged.
Owenson v. Morse, 7 Term Rep. 64. The plaintiff bought some plate of the defendant, and gave him some country banknotes in payment; the notes were dishonoured, on which the defendant refused to deliver the plate. The plaintiff brought trover, and insisted that the notes were payment; but on a case reserved, the court held that they were no payment unless the defendant had agreed to take them as payment, and to run the risk of their being paid. Nonsuit entered. See also Tapley v. Martens, 8 Term Rep. 451.
(59) Kearslake v. Morgan, 5 Term Rep. 513. Assumpsit for goods sold and delivered, and for money lent. The defendant pleaded the general issue; and that as to 47. 14s. 6d. one W.P.