With regard to the remedy of the party who pays supra protest, it has been ruled that he cannot recover against the person for whose honor he paid, if such payment is made before the bill is formally protested; it is not sufficient that the protest is drawn up before trial, and purports to have been made before the payment, if in fact it was not so. Vanderwall v. Tyrrell, cor. Lord Tenterden, 1 M. & M. 87. A party paying a bill supra protest for the honor of the drawers, has a remedy against the acceptor; ex parte Wackerbarth, 5 Ves. 574; unless he be an accommodation acceptor. Ex parte Lambert, 13 Ves. 179. see post, Chapter XIV. Where a person pays a bill for the honor of an indorser, he may sue the drawer. Per Ld. Kenyon, "Where a bill is taken up, the party who does so is to be considered as an indorsee paying full value for the bill, and as such entitled to all the remedies to which an indorsee would be entitled, that is, to sue all the parties to the bill." Mertens v. Winnington, 1 Esp. 113. See Manning, Dig. 89. Beawes, pl. 57. But paying a bill supra protest for the honor of the drawer, gives the party no right against the indorsers. Beawes, pl. 57. The party who pays a bill supra protest, may either sue on the bill itself, Fairley v. Roch, 1 Lutw. 891. Mertens v. Winnington,

The

Esp. 113, or in an action for money paid. Smith v. Nissen, 1 T. R. 269. Vandewall v. Tyrrell, i M. & M. 87. cases relative to the discharge of parties by giving time for payment have been already stated. Ante, Chapter IV.

Form of action.] The usual action on a bill or note is a special action of assumpsit, but where there is a privity between the parties, an action of debt or indebitatus assumpsit may be maintained. Thus it has been held that an action of debt may be sustained by the payee against the maker of a promissory note expressed to be for value received. Bishop v. Young,

2 B. & P. 78. So it lies by the drawer against the acceptor of a bill payable to the drawer's order and expressed to be for value received. Priddy v. Henbrey, 1 B.& C. 674. So by an indorsee against his immediate indorser. Stratton v. Hill, 3 Price 253, 2 Chitty, 126. S. C. 1 B. & C. 681. But an action of debt will not lie on a promissory note payable by instalments till the last day of payment is passed. Rudder v. Price, 1 H.Bl. 547. See Ashford v. Hand, Andr. 370.

Of the form of action· -common counts.] When the action is brought between immediate parties, the bill or note will be evidence of money paid, had and received, &c. so as to enable the plaintiff to recover under the common count, should he fail on the special count.

With regard to the count for money lent, it is said that a bill is prima facie evidence of money lent by the payee to the drawer. Bayley, 286. So a promissory note is evidence of money lent by the payee to the maker; Clarke v. Martin, 2 Ld. Řaym. 758. Carter v. Palmer, 12 Mod. 380; and also of money Ïent by the indorsee to his immediate indorser. Kessebower v. Tims, B. R. E. 22 Geo. 3. Bayley, 288. So where a note was in this form, "Received of Mr. Harris, the sum of 19. on the behalf of my grandson, which I promise to be accountable for on demand, S. H." it was held that it was good evidence of money lent, in an action by Harris. Harris v. Huntbach,

1 Burr. 373.

With regard to the count for money paid, it is said that a bill or note is prima facie evidence of money paid by the holder to the use of the drawer or maker, Bayley, 287, and that an acceptance also is primú facie evidence of money paid by the holder to the use of the acceptor. Ibid. But it is said by Eyre, C. B. that the presumptions of evidence which the writing affords, have no application to an assumpsit for money paid by the payee or holder of a bill to the use of the acceptor, and that it must be a very special case that will support such an assumpsit. "I can conceive a case," continues his lordship, "in which an acceptance might be evidence of money paid by the payee to the use of the acceptor. I may borrow of one man to lend to another, and if the person of whom I borrow the money pays it to my order into the hands of him to whom I mean to lend it, this might be a ground upon which a jury might find that the money was paid to my use." Gibson v. Minet, 1 H. Bl. 602. But where the indorser of a bill is sued by the holder and pays part, he may recover such payment from the acceptor in an action for money paid. Pownal v. Ferrand, 6 B. & C. 439. So the accommodation acceptor of a bill who has been compelled to pay it may maintain either a special action of assumpsit, Young v. Hockley, 3 Wils. 346, or an action for money paid, against the party, for whose accommodation he accepted; see

Cowley v. Dunlop, 7 T. R. 576; and a person who has paid a bill for the honor of a drawer or indorser may maintain the same form of action aginst the drawer or indorser. Ante, p. 251. Where the defendant and others drew a bill on the defendant alone in favor of a fictitious person (which was known to all the parties concerned in drawing the bill), and being indebted to A. B., delivered the bill to him, by whom it was indorsed for value to the plaintiffs, it was held that the latter might recover against the defendant on a declaration containing counts for money paid, and money had and received. Tatlock v. Harris, 3 T. R. 174. ante, p. 24. Money paid by the indorser to the holder of a bill stamped with the proper Irish stamp, in ignorance that the bill had been drawn in Ireland, and under an impression that it was an English bill wrongly stamped, may be recovered from the holder under the count for money paid, the holder having made the bill his own by laches. Milnes v. Duncan, 6 B. & C. 671. ante, p. 247.

With regard to the count for money had and received, it is said that an acceptance is prima facie evidence of money had and received by the acceptor to the use of the holder. Bayley, 287. And so it is said by Lord Mansfield, that undoubtedly an action for money had and received to the plaintiff's use may be brought by the bona fide holder of a note made payable to bearer. That it is certainly money received for the use of the original advancer of it, and if so, it is for the use of the person who has the note as bearer. Grant v. Vaughan, 3 Burr. 1525. but see Waynam v. Bend, 1 Campb. 175. post, contra. So in an action for money paid, and had and received, by the indorsee against the maker of a note, it appeared that when the note became due the plaintiff received in part payment a 10. bank note which was a forgery, to recover the amount of which this action was brought. It being objected, that the plaintiff ought to have sued on the note, Lord Ellenborough said he thought the action was maintainable; that when a person has put his name to a promissory note, he thereby acknowledges that he has money in his hands of the payee, and undertakes to pay it to whoever is legally entitled to receive it, that is, to the person who shall have paid for it a good consideration, and who has thereby become the legal holder of the note. Dimsdale v. Lanchester, 4 Esp. 201. But other authorities shew that it is only where the bill or note is enforced between immediate parties, that the plaintiff can recover on the count for money had and received. See Bently v. Northouse, 1 M. & M. 66. Thus, in an action by the indorsee against the maker of a promissory note payable to L. T. or bearer," for value received,' Lord Ellenborough held that the plaintiff could not recover under any of the money counts, as he was not an original party to the bill, and there was no evidence of any value being received by the defendant from him. Waynam v. Bend, 1 Campb. 175. So in an action by the in

dorsee against the acceptor of a bill, in which evidence was given, that on the indorsee presenting the bill to the defendant for acceptance, the latter on accepting it said, that he expected a remittance from the drawer in a few days, and that as he had a bill of the drawer in his hands which would be paid, he would run all risks, it was held that this conversation, together with the bill accepted by the defendant, did not amount to sufficient evidence to enable the indorsee to recover the amount of the bill on a count for money had and received. Whitwell v. Bennett, 3 B. & P. 559. So in an action by an indorsee against the maker of a note, which was misdescribed in the special count, the court said that the plaintiff being an indorsee, the money counts would not help him. Exon v. Russell, 4 M. & S. 507. Upon the same prin ciple it has been held that the payee of a joint and several note cannot recover against one of the makers, who signed the note as a surety for the other maker, on the count for money had and received, or on the account stated. Wells v. Girling, 3 Moore, 79. Gow, 22. S. C. So in an action by the drawers of a bill, payable to their own order, against the acceptor, Lord Ellenborough at first doubted whether the bill could be given in evidence under the money counts; but on its being urged, that the drawers were also the payees, and so the action between immediate parties, he admitted it under the count for money had and received. Thompson v. Morgan, 3 Campb. 101. See also Ex parte Davison, Buck, 32. The drawer of a bill who receives part of the amount from the acceptor to take up the bill, and who promises to do so, is liable to the holder in that amount, in an action for money had and received, though no notice of dishonor has been given. Baker v. Birch, 3 Campb. 107. In an action by the holder of a bill for money had and received against a person who has received a sum of money from the acceptor to satisfy it, any defence may be set up which would have been available if the action had been brought against the acceptor himself. Redshaw v. Jackson, 1 Campb. 372.

With regard to the count on an account stated, it has been heid, in an action by the indorsee against the acceptor of a bill, where the defendant, on being applied to for payment, admitted it to be his, but alleged his inability to pay at the time, that the plaintiff is entitled to recover upon the count on an account stated. Highmore v. Primrose, 5 M. & S. 65. See Wells v. Girling, 3 Moore, 79. Leaper v. Tatton, 16 East, 423. But in an action by the indorsee against the acceptor of a bill, where it appeared, that after the bill was due, it was shewn to the defendant, who was informed that the plaintiff was the holder, and admitted that it was a just debt, and said he would pay shortly, which, as it was contended, was evidence of an account stated, Abbott C. J. is said to have ruled, that as there was