#### *Norvell v. Hudgins.

Argued Tuesday, November 21st, 1815.

I. Promissory Note — Debt by Assignee — Evidence—Assignee a Purchaser with Notice, ‡ — in debt, on a promissory note, by the assignee against the drawer, the note appearing to he “for value received,” hut no consideration for the assignment being alleged; (2) parol evidence on the part of the defendant was admitted to prove that, before the plaintiff paid to the assignor any consideration for the note, he, the defendant, gave the plaintiff notice not to take it, or to pay any thing for it, for that he had made it without any consideration, and should not pay it, and also gave notice at the hank, that it might not he discounted; that the plaintiff had acknowledged that he had never paid any thing for it, and was not interested in it; and that the same was made as an accommodation note.

See Peake on Evidence, 119; Filmer v. Gott, 7 Bro. Parl. cases, 70; Rex v. Scamonden, 3 Term Rep. 474; Bull. N. P. 173.

a. Same — Same—Declaration—Necessary Allegations. § —A declaration, by the assignee of a promissory note, is too defective to maintain the action, if it do not state that the defendant failed to pay the money to the drawee, as well as to the plaintiff.

Thomas Norvell, assignee of John Filis, brought an action of debt on a promissory note, against Houlder Hudgins, in the su*237perior court of Mathews county. The declaration was in the usual form, except that no consideration for the assignment was alleged ; and, that the defendant was charged as not having paid the amount of the note to the plaintiff, without any charge that he had not paid it to Ellis, the assignor. The defendant pleaded “payment’ ’ generally, and nil debet.

At the trial, the plaintiff exhibited a note negotiable at the bank of Virginia, from Houlder Hudgins to John Ellis, or order, “for value received,” endorsed, “Pay Thomas Norvell. — John Ellis.” And then the defendant offered “evidence” to prove that, “before the plaintiff paid to the assignor, Ellis, any consideration for the note upon which this suit was brought, he, the defendant, called upon the plaintiff, and notified him not to take the note, or to pay any thing for it, for that he, the defendant, had made the note without any consideration, and should not pay it; and, further, that he gave the like notice at the bank of Virginia, that the same might not be discounted; and further, that the plaintiff had acknowledged that he had never paid any thing for the note, and that he was not interested in it;— and further, to prove, that the same note was made as an accommodation note— to which evidence the plaintiff objected, and moved the court to exclude the same from the jury as improper testimony in this cause ; but the court *over-ruled the motion, and permitted the evidence to go to the jury; to which opinion the plaintiff excepted.

He also moved the court to instruct the jury, “what was the law of this case, upon the testimony exhibited by the parties ; and the court did instruct the jury, that, if it was proven, to the satisfaction of their minds, that the note upon which this suit is brought was a note made for accommodation, without any valuable consideration between the parties thereto at the time ; and, that the plaintiff was informed thereof before he took it, or paid any consideration for it; and notified, by the defendant, that he would not pay it; and that the plaintiff had, in fact, paid nothing for the note, and had no interest in it; they ought, according to law, to find for the defendant; but, if they were satisfied that the plaintiff had received the note, and paid any valuable consideration for it, before the defendant gave him the information and notice aforesaid, then they should find for the plaintiff; to which opinion, also, the plaintiff excepted.”

The verdict was, “that the defendant hath paid the debt in the declaration mentioned ; and that the defendant doth not owe to the plaintiff the said debt, as in pleading he hath alleged.” Judgment for the defendant ; from which the present appeal was taken.

Wickham, for the appellant,

did not deny that, if it had been lawfully proved that the note was executed without consideration, the judgment would have been correct; but insisted, that, since the note appeared, upon its face, to have been given “for value received,” no testimony, unless of as high a nature as itself, was admissible to prove that in fact there was no consideration, (a) The instruction of the court being general, that evidence should be received, ought to be considered as comprehending parol testimony ; for generals comprehend all particulars. If there be any doubt as to what the court meant, the bill of exceptions is imperfect, and the case ought to be sent back.

Indeed, according to the law of merchants, promissory notes and bills of exchange are presumed to have been made *on a valuable consideration, even if the words “for value received” be not inserted, (b) The custom, in this country, of inserting those words in bills of exchange, is founded on our act of assembly,(c) and not on the general law of merchants.

The court’s opinion, stated in the second bill of exceptions, is also erroneous, — -and presents an additional point. The jury were sworn to try the issues joined on two pleas; viz. payment and nil debet; and their verdict was responsive to both those issues ; — finding, (under the influence of the instruction given by the court,) for the defendant as to both ; — when, in fact, he had not paid the note, but only contended that he ought not to pay it, because it was given without consideration.

Whether right or wrong, in relation to the plea of nil debet; — the instruction, that the jury should find “for the defendant,is clearly wrong, in the general terms in which it is couched.

Wirt for the appellee.

The declaration is fatally defective, in not averring that the debt was not paid to the assignor before the assignment, (d)

Wickham, (after examining those cases,) admitted them to be decisive ; but observed, that the reason for affirming the judgment, (viz. for the defect in the declaration,) ought to be stated by this court, that the plaintiff might be permitted to bring a new. action ; for, the declaration being defective, a judgment for the defendant, on that ground, cannot be a bar.

Wednesday, November 22d.

‡

Debt — Action of — Necessary Averments. — To the point that, in an action of debt, nonpayment of the debt demanded must he averred, the principal case was cited in Reynolds v. Hurst, 18 W. Va. 651. *footnote*to Strange v. Floyd, 9 Gratt. 474. See also, monographic *note*on “Debt, The Action of" appended to Davis v. Mead, 13 Gratt. 118.

§

 Assigned Bond — Action of Debt — Declaration—Necessary Averments. — In debt on a bond, in behalf of the survivor of two joint assignees, a declaration, charging that the defendant has not paid the debt to the obligee, or to the plaintiff, without averring, also, that he did not pay it to the other assignee in his lifetime is had on general demurrer. Nicholson v. Dixon, 5 Munf. 198, citing principal case.

The principal case is also cited in Taylor v. Bruce, Gilin. 89.

(2)

 Note. See Hall v. Smith, Young, and Hyde, 3 Munf. p. 555.

(a)

 Gatewood v. Burrus, *3*Call 194; Tabb v. Archer, 3 H. & M. 400; Meres v. Ansell, 3 Wills. 275; and Peacock v. Monk, 1 Vesey, sen. 128.

(b)

 4 Bac. 698.

(c)

 Rev. Code, 1st vol. ch. 77.

(d)

 Green v. Dulany, 2 Munf. 518;—Braxton’s administrator v. Lipscomb, Ibid. 282.

JUDGE ROANE

pronounced the court’s opinion, as follows:

“The court affirms the judgment of the superior court on this ground, without noticing any other; — that the declaration is too defective to maintain the action, in this; that the same does not aver that the money purported by the *note to be due was not paid to John Ellis, the drawee, but only that it was not paid to the plaintiff.”

The sentiments of the court were after-wards notified, for information of the parties, that the instructions to the jury, stated in both the bills of exceptions, were correct; but, that the appellant might maintain another action, if he could make out a new and better case.