The opinion of the Court was pronounced by
Skinner, Ch. J.This is an action of assumpsit, brought by Truman Chittenden, surviving partner of Giles T. Chittenden &f Co. against Daniel Huriburt. The declaration contains two counts, one for money had and received, the other for money paid, laid out and expended. Upon the general issue a trial was had at the last August term of the county court. The plaintiff, in support of his claim, offered in evidence a bill of exchange of the following tenor, viz: “Messrs. Giles T. Chit-tenden & Co. please to pay Hollister & Guindan, or order, fifty pounds Halifax currency, three days after date: for value received. St. Johns, June 21, 1817, (signed) Daniel Hurlburt.” This draft was accepted by the drawees on the day of the date, and by them paid on the 23d of the same month. No other evidence was offered on the part of the plaintiff. The Court instructed the jury, that the evidence was not sufficent in law to entitle the plaintiff to recover, and therefore directed a verdict for the defendant, to which decision the plaintiff excepted, and the case having been made by the parties, this Court is called upon to revise that decision. It is true, as insisted by the counsel for the plaintiff, that the draft was proper evidence to show the money paid at the request of the defendant, and it would avail him in case Huriburt should attempt to enforce a claim against him. It is also true, that the acceptor is as liable to the holder, upon an accommodation bill, as upon a bill where he has funds of the drawer in his hands; but these are principles that do not bear upon the question. It is contended, that a consideration is necessary to support the contract, and that the only consideration by which the acceptor is holden, is the liability of the drawer to pay him the amount of the acceptance, as money for his use.
The acceptor is liable to a third person who holds the bill for value, whether there be any consideration, as between the acceptor and drawer or not, (5 Wheat. 277) yet a want of consideration will protect him against the drawer. (2 Ph. Ev. 6, note.) It does not follow of course, that such consideration consists in the liability of the drawer to pay to the acceptor the amount, &c.
R. acc. Nash vs. Harrington, ante, p. 9. Charles Adams, for the plaintiff. B. F. Day ley and Alvin Foote, for the defendant.If the acceptor has the funds of the drawer in his hands, this surely is a sufficient consideration. . It is contended by the plaintiff’s counsel, that if the drawee is of course liable to the drawer by the acceptance, such bill might be given in evidence by the drawer, against the acceptor upon the money counts, and that the law is otherwise. Whether the law upon this point may be considered as so settled at this time, or not, is not very material to inquire, although there certainly is some doubt. The doctrine advanced by Lawrence, justice, in the case of Cowley vs. Dunlop, 7 T. R. 572, is to that effect. He says, he sees no reason to raise an implied assumpsit, as for money paid by the drawer, when the contract arising out of the bill, and the custom, are fully sufficient to enable him to recover what he may be obliged to pay, on the acceptor’s refusal. The position that the law merchant is not here recognized, is incorrect as applicable to bills of exchange. Notes of hand, it is true, are not in this state, as in England, by statute placed upon the footing of bills. The law merchant has ever, by our courts, been considered as binding upon them. It is a part of the common law, which is expressly adopted by our statute. If the bill in question, after acceptance, had been protested for non-payment, and recourse had by the holder upon the drawer, for satisfaction, the determination of the question, as to the right of the drawer to maintain an action against the acceptor, will decide the question before the Court; for if such action can be sustained, this cannot. It has already been remarked, that the want of consideration as between the immediate parties to a bill of note, will constitute a good defence. The contract is nudum pactum. And the only question in this case is, on whom does the burden of proof fall ? or rather, what is the presumption of law as to the drawee’s having effects of the drawer in his hands upon the acceptance of the bill. All the books, in treating upon the subject, say, that a bill of exchange is in contemplation of law an assignment of a debt due from the drawee to the drawer. The acceptance by the drawee is prima facie evidence of his having in his hands effects of the drawer to the amount of the bill.
The question as to his liability to the drawer, was solemnly decided in King’s Bench, in the case of Simmonds vs. Parminter and Barrow, 1 Wils. 185. That decision was affirmed in the house of lords, and has never'since been questioned. Lawrence, justice, in the case before referred to, in which he holds that the bill cannot be given in evidence upon the money counts, by the drawer, considers the acceptor liable of course to the drawer, upon the latter’s taking, up the bill.
Judgment of county court affirmed.