Peets v. Bratt , 6 Barb. 662 ( 1849 )

Hand, J.

In Churchill v. Gardner, (7 T. R. 596,) the declaration alledged that one Bavin made the bill of exchange, directed to the defendant, requesting him to pay the plaintiff or order, and that the defendant accepted it. There was a demurrer, because it was not stated that Bavin delivered the bill to the plaintiff. But the court said the delivery was included in the allegation that B. made the bill. That if B. did not intend to put it in circulation when he made it, that was matter of defense under the general issue. (And see Smith v. McClure, 5 East, 476.) The new forms of pleading adopted by the English courts in 1831, (See 7 Bing. Rep.) state that the note ■was “ delivered,” &c. but Mr. Chitty, in a note, says this is unnecessary. (Chit. on Bills, 551, note, 10th Am. ed.) The old forms contain the same allegation, (see Vol. 2 of Chit. Plead.) but upon these, Mr. Chitty makes the same remark. (Chit. on Bills, 360, 490, note 12, 7th Am. ed. 73, 573.) Churchill v. Gardner was on a bill of exchange, but the court put a note upon the same footing, and so does Mr. Chitty. Two of the nev^tforms upon which Mr. C. comments, (first and third,) are upowpromissory notes. (And see Cunliffe v. Whitehead, 3 Bing. N. C. 828.) In Henry v. Burbidge, (3 Id. 501,) it was held that in an action by indorsee against drawer a promise must be alledged. But Tindall, C. J. said an action against an acceptor rested on different grounds, and( “ the acceptance constitutes, in effect, a promise to pay, and the liability of a payor is like that of an acceptor, in most respects. Perhaps it would have been as well to have insisted upon an allegation of delivery; and this complaint is very loose. But it seems to me Churchill v. Gardner must control, until overruled. Of course, the note must in fact be delivered. (Chamberlain v. Hopps, 8 Verm. Rep. 94.) But in pleading, other words are deemed equivalent. This complaint states that the defendant, by his note, promised to pay the amount of the note to the plaintiff, and that the defendant is justly indebted to him therefor. This, I think, is at least equal to an allegation that the defendant made the note.

The remaining objections are not tenable. If the plaintiff has parted with the note, the defendant must show that fact. And as to the time of payment, where no time is expressed in the note, that is fixed by law. (Gaylord v. Van Loan, 15 Wend. 308. Thompson v. Ketchum, 8 John. 146.)

The plaintiff must have judgment, with leave to the defendant to amend on payment of costs.

Judgment for the plaintiff.