But instead of suing upon the bill or note, the holder may use it merely as evidence in another action.

A bill is primâ facie evidence of money lent by the payee to the drawer, and a note of money (50) lent by the payee to the maker, and each consequently of money (51) had and received by the drawer or maker to the use of the holder, and of money paid by the holder to the use of the drawer or maker. (b)

[The case of Lindo v. Bank of Alexandria, 1 Cranch, 343. is contra. But see a note to this case in 1 Cranch, Appendix, 462.]

[(a) The plaintiffs declared in debt as the drawers of a bill payable to themselves or order, for value received in goods, against the defendant as acceptor. On demurrer, Bayley J. delivered the judgment of the court. "There is an immediate privity between the plaintiff and defendant independently of the bill. The defendant is immediate debtor to the plaintiff, and he contracts by his acceptance to pay that debt. Under these circumstances we think the action of debt maintainable. Had there been a want of immediate privity between the parties, or had the bill omitted to specify the consideration, the case might have been different." Priddy v. Henbrey, 1 Barn. and Cres. 674. 3 Dow. and Ryl. 165.]

(50) Clarke v. Martin, Lord Raym. 758. Holt C. J. expressed his disapprobation of declaring upon promissory notes (before the statute) as if they were within the custom of merchants; and assigned as a reason," because there was so easy a method, as to declare upon a general indebitatus assumpsit for money lent." The same was laid down in 12 Mod. 380. and in Burr. 1525, Lord Mansfield says, "I do not find it any where disputed, that an action upon an indebitatus assumpsit generally, for money lent, might be brought on a note payable to one or order." And see Smith v. Kendall, ante p. 21. n. 62.

(51) Grant v. Vaughan, Burr. 1516. The bearer of a note payable to "Ship Fortune, or bearer," brought an action upon it, and inserted a count for money had and received. Lord Mansfield left it to the jury whether such a note was negotiable, and whether the plaintiff took it fairly, and they found for the defendant; but upon a rule nisi for a new trial, the court was clear the first point should not have been left to the jury; and per Lord Mansfield, "Upon the count for money had and received, the case is clear beyond dispute; for undoubtedly an action for money had and received to the plaintiff's use, may be brought by the bonâ fide bearer of a note payable to bearer. It was certainly money received for the use of the original advancer of it, and if so, it is for the use of the person who has the note as bearer;" and Wilmot and Yates, Js. expressed themselves to the same effect. A new trial was granted, and the plaintiff recovered.

[So it was held that the holder of a note payable to Wm. Douglass or bearer might recover against the maker on the money counts. Pierce v. Crafts, 12 Johns. R. 90.

If the second endorser of a note pay part of the sum due upon it, to the holder, who retains possession of it, he may recover the amount so paid, of the first endorser, on a count for money paid to his use; but in such case the second endorser not having possession of the note, cannot maintain an action upon the note itself. Butler v. Wright, 20 Johns. R. 367.]

An acceptance is (52) also primâ facie evidence 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,

[(b) A check upon a bank may be given in evidence on the money counts, in an action by the bearer against the drawer. Cruger v. Armstrong, 3 Johns. Cas. 5.

A check upon a bank drawn by a person borrowing money, in favor of the lender, both parties knowing there were no funds in the bank, and it not being intended to be presented there, is evidence of money borrowed, and the amount of the check is recoverable on the money courts. Cushing v. Gore, 15 Mass. R. 69.

So a note may be given in evidence on the money counts, in an action by the payee against the maker. And the plaintiff is entitled to recover, though the defendant has fraudulently obtained possession of the note. Arnold v. Crane, 8 Johns. R. 62.

So a note for a certain sum payable in certain lands may be given in evidence under the money counts, in action by the payee against the maker, where the latter is unable to convey the lands from defect of title. Smith v. Smith, 2 Johns. R. 235.]

(52) Tatlock v. Harris, 3 Term Rep. 174. In an action at the suit of the indorsee of a bill payable to a fictitious payee against the acceptor, who was also one of the drawers, the delaration contained counts for money paid and for money had and received; it appeared upon the evidence, that the defendant was indebted to one of the endorsers, and sent him this bill, for which he was credited in account, and that the plaintiff paid that endorser 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.

[S. Penniman drew on J. Penniman in favor of A. Penniman or order, for the net proceeds of certain notes in the hands of its drawee after deducting his own demands. A. Penniman accepted the order. It was held that an endorsee of the payee might maintain an action for money had and received, against the acceptor. Story J. said, “It is true, that the instrument is not negotiable. But by his acceptance the defendant undertook to hold the proceeds, after deducting his own demands, for the account of such person as should by the endorsement of the payee

and (53) an endorsement of money lent by the endorsee to the endorser.

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 large amount, but that he expects the drawer will remit, and will therefore take all risks upon himself, the acceptance will not be evidence of money had and received 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

on the draft entitle himself to the proceeds. The plaintiff is the regular endorsee or appointee of the payee, and after notice of this fact, the defendant must be considered as holding money for his use; and under such circumstances the law will imply a promise to pay the same over to him." Weston v. Penniman, 1 Mason, 306.]

(53) Kessebower v. Tims, B. R. E. 22 G. 3. Lord Mansfield held, that the endorsee of a note might maintain indebitatus assumpsit for money lent, against the person who endorsed it to him.

[So a negotiable note endorsed by the defendant to the plaintiff, may be given in evidence on a count for money had and received. State Bank v. Hurd, 12 Mass. R. 172.

Although a note be primâ facie evidence under a count for money had and received, in an action against an endorser; yet where he is merely an accommodation endorser, and the money for which the note is made, is paid to the maker, and for his sole use, the endorser is not liable on such a count. Page v. The Bank of Alexandria, 7 Wheat. 35.] (54) Whitwell v. Bennett, 3 Bos. and Pull. 559. This was an action by the endorsee 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 £80, 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 £80 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 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 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 is the only person who can call the drawee to account for the misapplication. (56) (a)

(55) De Bernales v. Fuller, Campb. 426. 14 East. 590. Plaintiff held a bill accepted by Puller, payable at defendants', Puller's bankers; plaintiff sent the bill to his own bankers, and they, according to the course amongst bankers, sent it to defendants'. Puller found the bill was at defendants', and sent the money there to pay it: defendants' clerk took the money, but refused to give up the bill, and defendants 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.

(56) Yates v. Bell, 3 Barnew. and Ald. 643. Ingram remitted £800 to defendant to take up, amongst others, a bill for £743, but that bill being returned dishonored, 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 be was not, and nonsuited; and on a rule to shew cause

An acknowledgement of the debt by the defendant will enable the holder to recover upon a count for the account stated. (57)

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 is given. (a)

For, in general, a bill or note is (58) no satisfaction of

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 dishonored 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 remitttance to pay a common debt, Williams v. Everitt, 14 East. 582.

[(a) See Mandeville v. Welch, ante, p. 27.]

(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.

(58) Puckford v. Maxwell, 6 Term Rep. 52. The defendant having been arrested by the plaintiff for £80, 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 dishonored, 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 bank-notes in payment; the notes were dishonored, 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.

[The vendor of flour agreed to

take the note of Lyon in payment.