Page's Administrator v. Bank of Alexandria
20 U.S. 35 (1822)

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U.S. Supreme Court

Page's Administrator v. Bank of Alexandria, 20 U.S. 7 Wheat. 35 35 (1822)

Page's Administrator v. Bank of Alexandria

20 U.S. (7 Wheat.) 35

ERROR TO THE CIRCUIT COURT OF THE DISTRICT

OF COLUMBIA FOR THE COUNTY OF ALEXANDRIA

Syllabus

A bill or note is prima facie evidence, under a count for money had and received, against the drawer or endorser.

But the presumption that the contents of the bill or note have been received by the party sued and for the use of the plaintiff may be rebutted by circumstances, and recovery cannot be had in such a case where it is proved that the money was actually received by another party.

But when it appears by other testimony of the plaintiff that the money for which the note wad made was paid not to the endorser, but to the maker, the presumption arising from the mere act of endorsing is destroyed, and the party cannot be admitted to abandon his count on the written contract and apply it to the general money count.

A note payable any number of days after date cannot be given in evidence under a count describing it as one payable on demand.

This was an action of assumpsit brought by the defendants in error, the Bank of Alexandria, against the plaintiffs in error, the administrators of William Byrd Page, deceased. The declaration contained two counts. The first was on a promissory note, which was set forth as made by William Hodgson and payable on demand to the intestate, Page, who endorsed it to the Bank of Alexandria, where it was discounted and the money paid to Hodgson. In support of this count, a note was given in evidence drawn by Hodgson in favor of and endorsed by Page, payable fifty-four days after date.

The other counts were for money lent and advanced by the plaintiffs below to the intestate, Page, and for money had and received by him for their use. Evidence was also given to show, that the Bank had

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used due diligence in demanding payment of the maker and in giving notice of nonpayment to the endorser, and that Page, in his lifetime, frequently promised the Bank payment of the note after it became due. Judgment was given for the plaintiffs below on a demurrer to the evidence, and the cause was brought to this Court by writ of error.

MR. JUSTICE LIVINGSTON delivered the opinion of the Court, and after stating the case, proceeded as follows:

Whether due diligence were used by the holder of the note is immaterial now to inquire, as this Court is of the opinion that a note payable any number of days after date could not be applied to a count describing it as one payable on demand.

The only remaining question is whether this note was sufficient proof of the count for money lent and advanced and for money had and received. There are certainly cases in which a promissory note or an endorsement of such note may be offered in

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evidence against the maker or endorser under a count of this nature, and if unconnected with other circumstances, may be sufficient proof in itself to charge the defendant. This proceeds on the ground that such note warrants a fair presumption or inference that the maker or endorser has received the contents of such note. But the court is not satisfied that in this case the mere production of this note was sufficient proof of Page's having borrowed money of the Bank, or of his having received moneys for their use. Although a note or an endorsement be prima facie evidence of a receipt of money from the holders, by the maker, or endorser, yet when all the other testimony in the cause produced by the plaintiffs themselves, shows unequivocally that the money for which the note was made was paid not to the endorser, but to the maker himself, and for his sole use, the presumption arising from the mere act of endorsement is destroyed, and the party, in such case, ought not to be permitted to abandon his count on the written contract of the party, and apply it to the general money counts. It is admitted or proved that this was a note made and endorsed for the accommodation of Hodgson, and that this fact was known to the directors of the bank, who received and discounted it as such, and for his sole use, and that he, and not Page, received the avails thereof. What pretense, then, is there that this money was lent to Page, or that he received it for the use of the Bank?

There was also proof in the cause that Page, in his lifetime, frequently promised the bank payment of the said note after it became due. This promise

Page 20 U. S. 38

must be regarded as applying exclusively to the note which was offered in evidence, and was payable in fifty-four days after date, and if that note had been declared on, its influence on the cause would deserve serious consideration; but it cannot be used in support of the other count, for the testimony in terms confines this promise to payment of then be, and says not a word of his undertaking to repay the money which the bank had loaned to him or which he had received for their use.

The opinion of the Court then is that the bank can only recover from the administrators of Page, if at all, on his endorsement, but that, having set forth the note incorrectly, and there not being sufficient evidence to support the second count, the present action cannot be sustained. The judgment of the circuit court is therefore

Reversed, and judgment is to be entered for the defendants below.

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