Page's Administrators v. The Bank of Alexandria./Opinion of the Court

by Henry Brockholst Livingston

Whether due diligence were used by the holder of the note, is immaterial now to inquire, as this Court is of the opinion, that a note payable any number of days after date, could not be applied to a count describing it as one payable on demand.

The only remaining question is, whether this note were sufficient proof of the count for money lent and advanced, and for money had and received. There are certainly cases in which a promissory note or an endorsement of such note, may be offered in

There was also proof in the cause that 'Page, in his lifetime, frequently promised the Bank payment of the said note, after it became due. This promise must be regarded as applying exclusively to the note which was offered in evidence, and was payable in fifty four days after date: and if that note had been declared on, its influence on the cause would deserve serious consideration; but it cannot be used in support of the other count, for the testimony, in terms, confines this promise to payment of then be, and says not a word of his undertaking to repay the money which the Bank had loaned to him, or which he had received for their use.

The opinion of the Court then is, that the Bank can only recover from the administrators of Page, if at all, on his endorsement; but that, having set forth the note incorrectly, and there not being sufficient evidence to support the second count, the present action cannot be sustained. The judgment of the Circuit Court is therefore reversed; and judgment is to be entered for the defendants below.

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