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action of debt brought on a (52) judgment recovered on a bill or note.
Where one count in the declaration is on a bill or note, and the defendant demurs to that count, and judgment is given for the plaintiff, the court (53) will refer it to the officer to ascertain what is due for principal interest and costs, on that count, though there are other counts on which the parties are at issue.
(52) Nelson v. Sheridan, 8 Term Rep. 395.
(53) Duperoy v. Johnson, 7 Term Rep. 473. The declaration contained many counts, one of which was on a bill; to that there was a demurrer, on which the plaintiff had judgment; to the others there was a plea, on which issue was joined: a rule nisi was obtained to refer it to the master to compute principal interest and costs on the bill; and on shewing cause against this rule, it was urged that the plaintiff ought either to have waited for the result of the trial of the issue on the other counts, or to have entered a nolle prosequi as to those counts. In support of the rule, Fleming v. Langton, 1 Str. 532., was cited; and the court thought that case decisive of the present, and made the rule absolute.
See Tidd's Practice, 5th ed. 569., stating that a nolle prosequi must be entered on the other counts; but that such entry need not be made before the reference to the master; that it is sufficient if done at any time before final judgment.
Defence to an Action on a Bill or Note.
Bargain for Renewal or Indulgence at the Time a Bill
Similar Bargain afterwards, p. 391.
by whom to be insisted on, p. 398.
Illegality of Consideration, p. 399.
in Bills or Notes for which
others are substituted, p. 407. Illegality of Consideration, by whom to be insisted on, p. 410.
ONE NE species of defence sometimes attempted upon a bill or note is, that there was some bargain when they were given or transferred, for a renewal or indulgence.
But it is a settled rule that no such defence can be supported by oral evidence, where it is inconsistent with the tenor of the bill or note. (1)
Thus upon a bill or note payable at a specified
(1) Woodbridge v. Spooner, 3 Barnew. and Ald. 233. Action against executors, on note payable on demand for value received: evidence was given that the bargain was at the time the note
time, parol evidence of a bargain when it is was issued, that it was not to be paid till I. S. should die, or certain estates should be sold, is inadmissible. (1)
So upon a general indorsement of a bill or note, the like evidence of a bargain at the time of the
was given, that it should not be payable till after the maker's death, and should then be in nature of a legacy, and on that ground nonsuit; but on rule nisi to enter verdict for plaintiff, and cause shewn, the whole court held the evidence should not have been received, because it imported a different bargain and intention from what the note expressed; and rule absolute.
Free v. Hawkins, 8 Taunt. 92. In an action upon a note by indorṣee against indorser, defendant insisted upon want of notice of the dishonour: plaintiff offered parol evidence that at the time the note was given and defendant (who only lent his name) indorsed it, it was understood that payment was not to be required until certain estates of the maker were sold, nor then unless they produced sufficient, and that therefore the defendant knew the note had not been honoured. Gibbs C. J. rejected the evidence, and nonsuited the plaintiff; and on a rule nisi for a new trial, the court held the evidence rightly rejected, because it contradicted the note, and the rule was discharged.
Rawson v. Walker, 1 Stark. 361. In an action by the payee against the maker, on a note payable on demand, defendant offered parol evidence, that it was given for goods sold to a bankrupt by his assignees, and that defendant was not to be called upon, unless his allowance under the commission should not be sufficient to pay the amount : per Lord Ellenborough, I am ready to admit evidence to shew the consideration illegal, but I cannot receive parol evidence inconsistent with the terms of the note; upon a note payable on demand, parol evidence to shew it was not to be payable upon demand, but on a contingency only, is not admissble. Verdict for plaintiff,
Same Point, Campbell v. Hodgson, Gow. 74.
indorsement, that the bill should be renewed, cannot be received. (2)
But parol evidence of a bargain after a bill or note was given or transferred, will be admissible; and the bargain, if there is a sufficient consideration to support it, will be binding. (2)
Where the ground of defence is an engagement to renew, it will be incumbent on the defendant to shew that he has taken the proper steps towards such renewal. (3)
It is a defence to an action on a bill, that it was passed to plaintiff by the first indorser for the special purpose of his getting it discounted for the first indorser, and that instead of so doing he
(2) Hoare v. Graham, 3 Campb. 57. Indorsee against payee of a note payable two months after date. Defence, that defendant refused to indorse unless plaintiffs would agree the note should be renewed when due, and that plaintiff acceded to that condition: sed per Lord Ellenborough, I cannot admit this evidence; it is inconsistent with the written instrument: I will receive evidence that the note was indorsed to plaintiffs as a trust; there may, after a bill is drawn, be a binding promise for a valuable consideration to renew it, but if the promise be contemporaneous with the drawing, the law will not enforce it; it would be incorporating with a written contract an incongruous parol agreement. Verdict for plaintiff.
(3) Gibbon v. Scott, 2 Stark. 286. In an action by drawer against acceptor on a bill for the freight of a chartered ship, the defence was, that plaintiff had engaged to renew the bill if the charterer did not return before the bill was due; but no application appearing to have been made to plaintiff to renew, Lord Ellenborough thought the defence failed, and the plaintiff had a verdict.
claimed to hold it for a debt owing to him by the
second indorser. (4)
Another species of defence to an action in respect of a bill or note, is (5) want or inadequacy of consideration for giving or transferring it.
(4) Delaunay v. Mitchell, 1 Stark, 439. E. Clewer held a bill payable to herself or order, and indorsed first by herself, and secondly by her son: to prevent a commission against her son she delivered the bill to plaintiff, that he might get it discounted for her; he did not get it discounted, but insisted on holding it for a debt the son owed him, and sued the acceptor; but Lord Ellenborough thought it clear he could not maintain the action, and directed a nonsuit.
(5) Jefferies v. Austen, Str. 647. In an action by the payee of a note against the maker, Eyre, C. J. of the common pleas, allowed the defendant to prove, that it was given as a reward in case the plaintiff procured the defendant to be restored to an office, and that the defendant was not restored; and on this proof the defendant had a verdict.
Jackson v. Warwick, 7 Term Rep. 121. The defendant's son was apprenticed by indenture to the plaintiff; and the defendant gave the plaintiff a note for 10l. as an apprentice fee; but this premium was not mentioned in the indentures, nor were they stamped pursuant to 8 Ann. c. 9. The son remained part of his time, and then absconded. In an action on the note, and the failure of consideration (the apprenticeship) relied on as a defence, it was contended that the avoiding the indentures could not collaterally affect the note, and that at all events the consideration had not wholly failed, inasmuch as the plaintiff had maintained the apprentice during his stay. Lawrence J., however, thought that the consideration was entire, and had wholly failed; but he allowed a verdict to be taken for the plaintiff, with liberty to the defendant to move to enter a nonsuit. The court concurred in opinion with Lawrence, and directed a nonsuit to be entered.