Anon — 19 Wend. 226

Majority

p. 226

Anon.

ALBANY,

January, 1838.

Headnote

Where the plaintiff1 declares on the money counts, and serves with the deck, ration a copy of a promissory note, with notice that the same will be given in evidence on the trial, a plea showing a good defence to the note without answering or attempting to answer the counts in the declaration is Bad, notwithstanding it be averred that the suit is brought for the recovery of the note alone, and not for the recovery of any other or different demand ; the plea to be good must be an answer to the counts and not merely an answer to the note.

Under the statute authorizing the holder of a bill of exchange or promissory note to include - all or any of the parties to a bill or note in one action, and to declare upon the •money counts alone, Statutes, sess. of 1832, p. 489, it has

p. 227

been holden by the court, in joint actions against the maker , , - . , - , and endorser ol a promissory note, where a copy ot the note was served with the declaration: 1. that a plea must be to the count, not to the note, and that a plea in bar of the note was no answer to the declaration, the copy of the note being served only to enable the plaintiff to give the original in evidence under the money counts, and forming no part of the declaration: and 2. that such plea to the note was bad, although it averred that the only cause of action which the plaintiff had against the defendants was the note a copy of which was served with the declaration.^[1]

* Whilst preparing these sheets for the press, a case is just decided (January term, 1839,) in conformity to the above general propositions: it is the case of Caldwell v. Davis and four others. The declaration is on the money counts ; a copy of a promissory note is attached made by Davis and endorsed by the other defendants, with a notice that on the trial of the cause the plaintiff will give in evidence under the foregoing declaration a promissory note in the words and figures following, to wit, (setting forth a promissory note verbatim, with the names of the maker and endorsers.) One of the defendants put in a special plea actio non, because the suit is brought to recover the amount of a promissory note (describing the note, a copy of which is attached to the declaration) and not for the recovery of any other or different demand. The defendant then alleges that the note was endorsed for the accommodation of the maker for a specific purpose, and that the maker misappropria ted it, and that it was received by the plaintiff with notice of the facts, concluding with a verification and prayer of judgment. The plaintiff replied and the defendant demurred to the replication. On the cause coming on to argument the court adjudged the plea to be bad, and gave judgment for the plaintiff.