Russell against Whipple

Russell against Whipple. An instruingnt m thus" “Due L. R.or l)6&r6r 200'dollars and 26 cents, for value received,” is a good not™1SS°mthin the statute of Ann. In declaring on a promissory note, it is enough to allege that the defendant made his certain note in writing, &c. without averring that he delivered it. Assumpsit on note, by payee against maker. The plain* tiff Averred that the defendant made his certain note, in writing, in the words and figures following, to wit: “Due Lanson Russell, or bearer, one day from date, two hundred dollars, twenty-six cents, for value received: as witness my ‘ ' • J ' J hand, this sixth day of January, in the year of our Lord 1823.” By means whereof, &c., but did not aver that this note had been delivered. Special demurrer and joinder, assigning the following causes; 1. That this was not a promissory note within the statute, (1 R. L. 151,) though declared on as such. 2. That the declaration should have shown a delivery of the note. It was answered to the first point, that this instrument had all the technical requisites of a promissory note, except a promise to pay expressed ; and the following authorities were cited to show it a good note within the statute: 1 Chit, on Bills, 243, n. (1) Shuttleworth v. Stevens, (1 Campb. Rep. 407,) Allan v. Mawson, (4 id. 115,) Broion v. Gilman, et al. (13 Mass. Rep. 158.) Fisher v. Leslie, (2 Esp. Rep. 426,) President, &c., of Goshen Road v. Hurtin, (9 John Rep. 217,) Jerome v. Whitney, (7 id. 321,) and 2 Ld. Raym. 1445. In answer to the second point, Churchill v. Gardner, (7 T. R. 596,) and Smith v. M’Clure, (5 East, 476.) E. S. Lee, for the plaintiff. D. D. Barnard, for the defendant. Vide Saxton v. Johnson, 10 John. Rep. 418 [MAJORITY] The demurrer was noticed as frivolous, and being accordingly brought on out of its place on the calendar, the Court thought it too plain for argument in its regular order, and ° , rendered . Judgment for the plaintiff.