President of the State Bank v. Hurd , 12 Mass. 171 ( 1815 )

Curia.

The authorities cited the counsel for the clearly show that a count for money had and received may he maintained upon a negotiable promissory note, indorsed by the party against whom the action is brought, to the party who brings the action.⁽¹⁾, ^† There is no inconvenience in such a count; [*173] for the Court will always take care *that the defendant, when called upon to answer to such a general charge, shall have reasonable notice-of the ground of the suit; and the same evidence of diligence and notice will be required, as if the declaration had been special upon the note.

The other objection made in the argument, namely, that a demand was not duly made on the promissor, is not supported.

The agreement of the promissor, that notice left for him at a certain shop in Boston should be equivalent to a more formal demand upon him, removed the necessity of resorting to his house or place of business, to make such demand ; and his failure to pay on such notice rendered the indorser, who had seasonable information, absolutely liable.^‡

Defendant defaulted.

(1) 2 Strange, 719, 725. — Bull. N. P. 136, 137. — Chitty on Bills, P. 2, c. 2. — 1 Burr. 373. — 1 Salk. 129. — 3 Burr. 1516, & c.

† Page, Adm'r., vs. The Bank of Alexandria, 7 Wheat. 35.—Hennings vs. Rothschild, 4 Brugh. 334, — Rhodes vs. Gent, 5 B. A. 245. — Eales vs. Dicker, 1 M. M. 325, note. — Bayley, 5th ed., 358. Bat the rule generally adopted is, that the plaintiff can recover on this count only where the bill or note is to be enforced between the immediate parties, or privies in contract. Waymam vs. Bend, 1 Campb. 175. — Exon vs. Russel, 4 Mo. S. 507.— Thompson vs. Morgan, 3 Campb. 101. — Wells vs. Girling, Gow, 22, 3 B. Moore, 79. — Bentley vs. Northouse, 1 M. & M. 66. — Eales vs. Dicker, 1 M. & M. 324. — Mandeville vs. Riddle, 1 Crunch, 290. — Surtees vs. Hubbard, 4 Esp. 204 —Mowry vs. Todd, post, 281.— Smith vs. Smith, 2 Johns. R. 235. — Sexton vs. Johnson, 10 Johns. R. 418.— Weston vs. Penniman, 1 Mason, 306. — Priddy vs. Henbry, 1 B. & C. 674.— Withwell vs. Bennett, 3 B.& P. 559.—Barlow vs. Bishop, 1 East, 434.— Taylor vs. Higgins, 3 East, 169. Sed vide Cole vs. Cushing, 8 Pick. 48.— Wild vs. Fisher, 4 Pick. 421. — Dimsdale vs. Lanchester, 4 Esp. 201.— Grant vs. Vaughn, Burr. 1516. — Bayley on Bills, 4th ed., p. 287.— Olcott vs. Rathbone, 5 Wend 495. — Pierce vs. Crafts, 12 Johns. R. 90.

‡ The note being in terms made payable at the State Bank. no presentment or demand elsewhere could be necessary. Roe vs. Young, 2 Brod & Bing. 242.—Ambrose vs Hopwood, 2 Taunt. 51.— Bayley on Bills, 5th ed., 219. — Saunderson & al. vs Judge, 2 H. BL 509. — Saunderson vs. Bowes, 14 East, 508. — Dickenson vs. Bowes, 16 East, 110.— Roche vs. Campbell, 3 Campb. 247. — Price vs. Mitchell, 4 Campb. 200. Callaghan vs. Aylett, 3 Taunt. 397. — Gammon vs. Schmoll, 5 Taunt. 344 — 1 Marshy 80.

[Ellsworth vs. Brewer, 11 Pick. 316. — Ed.]