Kirkpatrick v. Bethany

COLLIER, C. J. — It was competent, for the plaintiff to have joined the common counts with a count on the bill, and it is a 202 mode of declaring, usual in practice, ex majare cautela. A bill or note is,prima facie., evidence of money paid to the use of the drawer of the one, or maker of the other: (Pownal v. Ferrand; 6 B. & C. Rep. 439: Bayl. on bills 164.) So a bill, as well as a note is,prima facie, evidence of money had and received by the drawer or maker, to the use of the holder: (Bayl. on Bill 487; 4th ed.) But even if the bill be not admissible under the common count, which a plaintiff may choose to join, still its insertion cannot be regarded as a misjoinder. The general issue to- each eount is, non assumpsit; and the demands are to be established by evidence existing in parol, though in the one case it is written, and in the other, depends upon the niemory of witnesses. The omission of the plaintiff to particularize, in the endorsement of the cause of action on his writ, every count proposed to be embraced in the declaration, did not authorize the court to strike out those not particularly noticed. Without pretending to inquire whether, or how far, a variance between the endorsement on the writ and the declaration, will be regarded, we think it entirely competent for a party to declare for any cause consistent with, or embraced by the endorsement. Thus, if the writ be endorsed with a bill or note, the declaration may embrace the common counts, under which a bill or note may be given in evidence. But if it be allowable for the defendant to avail himself of a variance between the endorsement on the writ, and the declaration, we are inclined to the opinion, that the objection must be brought to the view of the court, in some other manner than by á motion to strike out the objectionable part of the declaration, in every point of view, we are of opinion, that the County Court erred in its decision upon the defendant’s motion. The judgment is therefore reversed, and the case remanded.