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The court (46) will therefore upon such judgment, even in assumpsit, if the bill or note is for the payment of British money, refer it to an officer to ascertain the sum due for principal, interest, and costs, and give the plaintiff final judgment without a writ of inquiry.

And if the bill or note be lost pending the action, they will refer it on a verified copy. (47)

But the (48) court will not refer it, if the bill or note is for the payment of foreign money.

Nor will they refer it, to ascertain the amount of (49) charges and expenses; or to compute (50) re-exchange upon a foreign bill.

And though the action be in fact brought to recover the money due upon a bill or note, yet the court will not refer

(46) Shepherd v. Charter, 4 Term Rep. 275. The defendant having suffered judgment by default in an action on a bill, the plaintiff obtained a rule to shew cause why it should not be referred to the master, to compute what was due for principal and interest. The rule was opposed upon the general ground that a reference in such cases was improper; but the court thought otherwise; and Grose J. observed, that the judges in the common pleas gave the case before them great consideration before they referred the question to one of the prothonotaries; and the rule was made absolute. The same had previously been done in Rashleigh v. Salmon, 1 II. Bl. 252., Andrews v. Blake, 1 H. Bl. 529., Longman v. Fenn, 1 H. Bl. 541.; and it is now every day's practice in the king's bench and common pleas, but not in the exchequer, vide Chilton v. Harborn, 1 Anstr. 249.

(47) Brown v. Messiter, ante, p. 263.

(48) Maunsell v. Lord Massareene, 5 Term Rep. 87. The court discharged a rule nisi for referring it to the master to compute principal, interest, and costs, upon a bill of exchange, because the bill was for the payment of 2001. Irish money. See also Napier v. Schneider, infra, n. 50.

(49) Goldsmid v. Taite, 2 Bos. and Pull. 55. On a rule to shew cause why a bill of exchange should not be referred to the prothonotary to compute principal, interest, exchange, re-exchange, charges, expenses, and costs, it was objected that charges and expenses were not matter of mere computation; and the counsel for the rule consenting to strike out those words, the court made the rule absolute. But as to re-exchange, see the next note.

(50) Napier v. Schneider, 12 East's Rep. 420. A bill was drawn in Scotland upon and accepted by the defendant in England, and on motion to refer it to the master to compute principal, interest, and costs on this bill, the court was prayed to direct the master to allow re-exchange; but this they refused, saying that they would not refer it to the master to try foreign customs and facts, but only to compute what was due upon the bill itself. They therefore granted the rule in the common form.

it to the officer (51), unless the bill or note be stated in the declaration.

Nor will the court make such reference, in an 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.

(51) Osborne v. Noad, 8 Term Rep. 648. The declaration contained only counts for goods sold, and work and labor, and the common money counts. On judgment by default, the plaintiff obtained a rule nisi to refer it to the master to compute principal and interest on two notes; and in support of the rule an affidavit was produced, stating that the action was brought to recover the amount of these notes, and that such amount was recoverable under the money counts. The court, however, said that the rule was confined to cases in which it appeared by the declaration that the action was brought on the notes or bills. Rule discharged.

(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.

CHAP. XII.

Defence to an Action on a Bill or Note.

ONE 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 time, parol evidence of a bargain when it was issued, that it was not to be paid till I. S. should die, or certain estates should be sold, is inadmissible. (1) (a)

(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 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 endorsee against endorser, defendant insisted upon want of notice of the dishonor: plaintiff offered parol evidence that at the time the note was given and defendant (who only lent his name) endorsed 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 honored. 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 admissible. Verdict for plaintiff.

Same point, Campbell v. Hodgson, Gow. 74.

[See also Renner v. Bank of Columbia, 9 Wheat. R. 587, and Britten v. Webb, ante, p. 214.

It is held in many American cases that in an action against an endorser, parol evidence is not admissible to contradict or vary the legal

[In an action on a note payable immediately, parol evidence cannot be received that it was to be paid at a future day. (b)]

So upon a general endorsement of a bill or note, the like evidence of a bargain at the time of the endorsement, 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)

effect of the endorsement. Field v. Nickerson, 13 Mass. R. 138; Sice v. Cunningham, 1 Cowen, 397; the opinion of Hosmer J., in Bishop v. Dexter, 2 Conn. R. 422; Price v. Perry, 2 S. Car. R. 31; Rugely v. Davidson, 2 S. Car. R. 33.

But in a case in Pennsylvania, in an action against the endorser of a note endorsed by him in blank, it was held that he might prove by parol evidence, that at the time of the endorsement, the plaintiff received the note under an agreement not to have recourse upon it to the endorser. Duncan J. delivering the opinion of the Court, said, "The parol evidence is not to contradict any written instrument, but to prevent the party from making use of a blank endorsement, with which he was entrusted, contrary to his agreement when he received it; and as parol evidence in an action between drawer and payee of fraud or want of consideration to impeach a note, is constantly received, the same evidence may be given to impeach an endorsement between the endorser and the endorsee." Hill v. Ely, 5 Serg. and Raw. 363.]

[(a) It has been held in Massachusetts, in an action on a note payable at a day certain, that a written agreement given by the payee to the maker at the time the note was made, "to wait for the money due him, till the maker turned his property to the best advantage," and a parol agreement to wait five years, could not be received in evidence. Parsons C. J. said, "This agreement, although made at the same time, must be considered as a collateral promise of the promisee's, for the breach of which, if there be a legal consideration, an action would lie." Dow v. Tuttle, 4 Mass. R. 414.]

[(b) In an action brought in New York on the following note, "I promise to pay Samuel Thompson eighty dollars, Montego Bay, Ap. 21, 1807," it was held, that the note was payable immediately, and being made in Jamaica, parol evidence was not admissible that it was to be paid in New York. Kent C. J. delivered the opinion of the Court. "The time of payment is part of the contract, and if no time be expressed, the law adjudges that the money is payable immediately, and the parol proof went to alter in a very material degree its operation and effect, by making it not payable, until some distant and undefined period when the parties should arrive in New-York." Thompson v. Ketcham, 8 Johns. R. 146.]

(2) Hoare v. Graham, 3 Campb. 57. Endorsee against payee of a note payable two months after date. Defence, that defendant refused to endorse unless plaintiffs would agree the note should be renewed when due, and that plaintiff acceded to that condition: sed per Lord

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 endorser for the special purpose of his getting it discounted for the first endorser, and that instead of so doing he claimed to hold it for a debt owing to him by the second endorser. (4)

[So where a note made by two persons was received by the payee for him to get it discounted at a particular bank, on specified terms, part of the money received on it to go to one of the makers, and the remainder to be retained by the payee on account of a debt due to him from the other maker, and the bank refused to discount the note; it was held that an endorsee of the payee who sued for the benefit

Ellenborough, I cannot admit this evidence; it is inconsistent with the written instrument: I will receive evidence that the note was endorsed 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.

[After a note made by A. Winship to J. Winship became due, in consideration of A. W.'s becoming a surety for J. W. in a bond J. W. agreed that a balance should remain unpaid upon the note for A. W's security, which should not be claimed by J. W. if A. W. was obliged to pay the bond. J. W. became bankrupt and A. W. afterwards paid the bond. In an action by J. W.'s assignee against A. W. on the note, it was held that the above facts were a good defence for the amount paid on the bond. Parker C. J. delivering the opinion of the Court, said, "The agreement is not inconsistent with the written contract, it being made subsequently, and after the contract was broken by nonpayment." Ward v. Winship, 12 Mass. R. 481.] ·

(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.

(4) Delaunay v. Mitchell, 1 Stark. 439. E. Clewer held a bill payable to herself or order, and endorsed 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.

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