JAN. TERM, 1857. MATLOCK V. PUREFOY. *MATLOCK [*492 V. PUREFOY. - In an action: of aasumpsit, by the payee, on a promissory note, payable to J. M., or bearer, for value received, it is sufficient, iu setting out the note according to its legal effect , to allege that the defendant made his promissory note, and describe it as payable: to J . M.—omitting the words "or bearer" andrfor value received." It is unnecessary to allege the place where a bill or note wasimade, unless made in a foreign country and the plaintiff seeks to recover interest or damages different from that allowed by the law of the forum. It is a fatal defect in a count upon an account stated, to allege a promise to pay the amount with 10 per cent, interest, without. alleging the promise to be in writing; hut such defect would be considered as amended under the statute (Dig.,ch. 126, p. 606), unless specially pointed out ae a cause of dem urrer. A breach in( assumpsit, that the defendant "has not paid any of the said money, or any part there- ,s3 of, or the said ten per cent, interest, or any part of the said interest." is good enough, although not absolutely certain to every intent in every particular. When the [declaration contains a count on a note and one on account stated, the note is not admissible in evidenceju proof of the account not charged to have been signed by the defendant, until its execution be first proven. Appeal from the Circuit Court of Ouachita County. HON . !ABNER A. STITH, Circuit Judge. Strain and Cummins S& Garland, foi appellant. *SCOTT, J. The actiou was as- p493 sumpsit on a promissory note. There was a special count on the note bearing ten per cent. interest, setting it out according to its legal effect, and a count on an account stated, alleging a promise to pay the amount named with ten per cent. interest. It was not alleged that the' promise to pay this last named interest was in writing. There was a demurrer assigning--1. Because the note was not described as payable to John Matlock or bearer-2d. Was not described as given for valta
VoL. Is received-3d. Was not described as Chitty on Bills, p. 564; Payne v. Brit-made at Camden, Arkansas-4th. The tin, exr., 6 Rand. 101.) Where a bill breach was not sufficiently certain in may have been made in a foreign coun-its negative as to the ten per cent. in- try, and the plaintiff seeks to recover terest. interest or damages different from that The breach was, "has not paid any allowed by the law of the forum, then of the said moneys, or any part there- the place ought to be alleged, becauQe.in of, or the said ten per cent. interest, or that case, matter of substance. In gen-any part of the said interest." eral, however, if stated, it would not The note, which we will presume be traversible, and would b treated as was given on oyer, although there is surplusage. (Swinney v. Burnside, 17 no entry to that effect in the record, Ark. 38.) 4. As to the breach, although was dated "Camden, Arks."—was not absolutely certain to every intent payable to J. M., "or bearer," and "for in every particular that a sharp lawyer value received" was upon its face. in sharp practice might conceive, it The court sustained the demurrer to seems good enough. Because, it is easy the first count, and overruled it as to to see that the plaintiff said that the the second. The fatal defect in the defendant had paid no part of the second count (Dig , Stat. of Interest, money or interest that he had before sec. 2, p. 614), not having been poiuted alleged he had promised to pay him. , out in the demurrer, was, no doubt, But although the court erred in sus-considered by the court as amended, as taining the demtirrer, it is perfectly by striking out the words "ten per clear that the decision upon the other cent. interest," under section 62 of the question was right—Jhat is, in exclud-statute of demurrers. (Dig., chap. 126, ing the note as evidence upon the sec-p. 806.) ond count, after the first was quashed, We think, however, that none of the until its execution should be first supposed defects expressed in the de- proven as at common law. Because, murrer, ought to have been regarded as then the declaration was not "founded sufficient to authorize the court to sus- upon any instrument or note in writ-tain it. No one of them pointed out a ing charged to have been executed by substantial defect, as we think. There the other party" (Dig., ch. 126, sees. was no effort to set out the note in each 103--'4; Bank of the State v. Kirby et al., verba. 1st. If the plaintiff had de- 9 Ark. 353), but was upon an account clared ou a derivative title, and there stated, not charged to have been signed was no endorsement, then, to show title by the defendant. to sue, he would have had to allege the Judgment reversed and cause re-note as payable to "J. M. or bearer ;" manded. but in this case, J. M., the payee, was Absent, Hon. Thos. B. Hanly. himself the plaintiff. 2. The plaintiff ated:--24-190. alleged that the defendant "made his promissory note." A promissory note imports value received. Story on Prom. 494 e] Notes, sec 51. 3.. Iu *the case of &mon et al. v. Hill, ad., 7 Ark. 73, this court cited with approbation the case of Houriet v. Morris, 3 Campbell-R., in which Lord Ellenborough held it unnecessary to g ate the place where the instrument was made. (See also,
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