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p. 121. ch. 77.9 6.) to have fixed the rate of exchange. THOMPSON The verdict ought to have been amply for the sterling debt and damages; but the jury have gone on and said JAMESON. that the debt should be discharged by the payment of 2544 dollars and 49 cents; and the court have rendered judgment in the same manner, without fixing the rate of exchange.

6th. The declaration states the decree to have been made on the 19th of November, but does not say in what year. This omission was fatal on the plea of nul tiel record.

E. J. Lee, for defendant in error.

ift. The record states the obligation of Thompson in the very words of the act of Assembly. It is the highest obligation which he could have entered into.

It is an acknowledgment on record, and is stronger than his bond. Its meaning is evident from the intention of the act of Affembly ; and is fimply this, that Hadfield should pay the money decreed to be due, and if he did not, that Thompson would pay it for him.

2d. To the objection that this is not such an obligation as will support an action of debt, the answer is, that it is in the nature of a recognizance in chancery, and an action of debt will lie on such a recognizance, 1 Esp. N. P.216.

3d. The case in 3. Mod. does not apply to the present. There the action was upon a judgment. Here it is upon the obligation or recognizance of Thompson. We have declared for as much as was due from Hadfield and no more. The obligation of Thompson was to pay what Hadfield should fail to pay. Our action is for this. The record of Fairfax court, which is made part of the declaration, shows how the residue was discharged.

4th. The court of Fairfax did not convert the debt into Virginia currency. They only fixed the principles on which the exchange should be made. The decree is for sterling to be discharged in current money at a certain rate of exchange.

THOMPSON 5th. It is the province of the jury and not of the court

to fix the value of sterling money. 1. Wasb. 373. 378. JAMESON. Barnet and al. v. Watson and al.

V

6th Although the year of the decree is not stated in the declaration, yet enough is stated to render it certain.

Key was to have argued on the fame side, but on examination of the record of the decree in Fairfax, and comparing it with the declaration; and finding the decrec to be for £.860. 12. 1. sterling with interest from a certain day to the day of paling the decree, and the declaration being only for the principal, he considered the variance as fatal. He had not before noticed accurately the words of the decree, but had supposed the interest did not stop at any certain day, but was, by the decree, to run till the time of payment. He did not understand that this point had been made in the court below, and therefore had not before examined the record with a view to it.

The court gave no opinion upon the other points, but considering this variance as fatal,

Reversed the judgment.

The chief justice observed, that there was no clause in the declaration stating that Thompson undertook to pay if Hadfield did not, and therefore an action of debt would not lay.

MANDEVILLE AND JAMESON

MANDEVILLE & AL.

RIDDLE & AL.

JOSEPH RIDDLE AND CO.

In Virginia, an indorsee of a

ERROR from the circuit court of the diftriat promissory note can not main- of Columbia fitting at Alexandria, in an action on the tain an action case brought by the defendant in error for money had and against a remote received, which was the only count in the declaration ; indorser, for want of privity.

and to which the defendant pleaded the general iffue.

The evidence offered and admitted to support the de- MANDSclaration was a promiffory note made by Vincent Gray, VILLE & AL. dated at Alexandria on the 2d of March 1798, by which

RIDDLE be promised to pay fixty days after date to the order of

& AL. Mandeville and Jameson 1500 dollars for value received, negotiable at the bank of Alexandaia. This note was indorsed by Mandeville and Jameson to James M-Clenachan, and by him to Joseph Riddle and co. the defendants in error. The protest of a notary public made on: the fifth May 1798, attesting that he had on that day demanded payment of the note of the maker, who refused, and of Mandeville and Jameson the first indorfers, who also refused, and that James M-Clenachan the other indorfer did not dwell in his district. The record of a suit on the same note brought by Joseph Riddle and co. on the 14th of June 1798, against Vincent Gray, the maker, profecuted to final judgment and execution, upon which execution he was committed to jail and took the oath of an insolvent debtor and was discharged, on the 6th of Februa ary 1799.

The present action was commenced in July 1801.

A bill of exceptions was taken by the defendants below, stating these facts, and that they prayed the opinion of

the court,

ist. Whether, this action could be sustained by the present “ plaintiffs against the present defendants, there bea “ing an intermediate indorfer between them," and,

2dly. “ Whether if the said action is sustainable, the “ faid' evidence is admissible upon a single count for money « had and received," and that the opinion of the court below was that the action might be sustained, notwithstanding the intermediate indorfer; and that the evidence was admissible upon the single count for money had and received. Verdict and judgment for the plaintiffs for 1919 dollars and costs, to reverse which, the defendants below sued out the present writ of error.

E. J. Lee and Swann, for plaintiffs in error,

Simms, for defendants,

MANDE. E. J. Lee. TILLE & AL.

ift. The action of indebitatus affumpft will not lay for RIDDLE

the holder against a remote indorler, because there is no & AL.

privity of estate or privity of contract. It is an action at common law; and by the common law no action of indebitatus affumpfet for money had and received will lay escept between privies. Kyd. 175. (113, 114)

2d. There being only one count in the declaration, and that being only for money had and received, the note ought not to have been given in evidence, because it muft have been a surprise to the defendants. In England it is ufual to give notice of the plaintiffs real ground of action either by a special count, or by a formal notice. The defendants could not come prepared to defend the action. The action for money had and received is said to be in the nature of a suit in equity. But here the defendants were in a worse fituation, than if a bill in chancery had been filed against them; for in that case the bill must have stated the grounds of the claim and shown the equitable circumstances which entitled the plaintiffs to recover.

A remote indorser is liable to the holder only upon the custom of merchants, and therefore there ought to have been a special count stating the custom.

The English statute of Anne respecting promiffory notes is not in force in Virginia ; and the act of afsembly which supplies its place only allows an assignee to bring an action of debt in his own name against the maker of the note, but gives no remedy against the assignors. Hence it results that the remedy of the assignee against the affignors is either at common law or under the custom of merchants. By the common law the action of indebitatus affumpfit lies only between privies; and here is no privity. And if resort be had to the custom of merchants; that cuftom must be averred in the declaration.

Simms, contra.

Every indorser is as the maker of a new note. 1 Strange, 479, Smallwood v. Vernon. Exp. N. p. 33. 2 Bur. 674,

Heylin v. Adamson. He undertakes to pay the sum menti- MANDE. oned in the note, if the original maker does not. As VILLE & ALI soon as the original maker fails to comply with his engagement, that of the indorfer becomes absolute. He

RIDDLE then becomes the holder of so much money as is expressed in the note, to the use of his immediate indorsee, or of such person as he shall name.

& AL

It is true the plaintiffs below have fought their remedy at common law; and by common law they are entitled to recover. Every man ought to be compelled to pay money which he has in his hands belonging to another, and which in equity and good conscience he has no right to retain. And the principle is now well established that at common law he may be compelled to pay it, by an action for money had and received.

As to the evidence offered on this count; it was long doubted, before the statute of Anne, whether any other than an action of indebitatus affumpht for money had and received, or for money lent, would lay upon a note. This was the ground of contention between lord Holt and the merchants of Lombard street; he strenuously contending that the action for money had and received, or for money lent, was the only proper remedy; and they endeavoring to bring into use the form of declaring upon a note as a fpecialty. Although a note may now, under the statute, be declared upon as a specialty, yet the statute has not taken away the common law remedy which existed before.

As to surprize, the objection made would go to almost every case where money had and received is the proper action, fuch as where the confideration happens to fail, or where money has been paid by mistake, &c.

Indorsement is evidence that the indorfer has received money of the indorsee. And at and from the time of the indorfement, the indorser is debtor to the indorfee, and the debt may be proved under a commission of bankruptcy against the indorser before the note is payable.

In this case however there could be no surprize, the defendants below had notice of the non-payment of the note and that they would be held liable; and it is imma

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