
    Hollingsworth v. Milton.
    February, 1837,
    
      Richmond.
    
    Pleading and Practice — Declaration—General Demurrer —Effect.—Upon a general demurrer to a declaration containing several counts, if any one count be good, the demurrer must'be overruled.
    Same — Debt—Against Acceptor of Order. — Under the statute of Virginia, 1 Rev. Code, ch. 135, § 4, an action of debt will lie for the payee against the acceptor of an order.
    Eben Milton declared against Joseph P. Hollingsworth in the county court of Frederick. The declaration contained three counts, all of which were in debt. The first was in these words: “For this, that whereas on the-day of -- 1825, at the county aforesaid, a certain David H. Allen, by this note in writing signed with, the property name oi him the said David H. Allen by his own hand, did order the said Joseph P. Hollingsworth to pay to the-said Eben Milton or order the said sum of 172 dollars 50 cents, with interest from the 25th of February last, that being the balance due from you (meaning the said Hollingsworth) tome (meaning the said Allen) for wheat; and whereas, afterwards, to wit, on the 30th day of May 1825, at the county aforesaid, the said order was presented to the said Joseph P. Hol-lingsworth, who, by indorsement thereon, signed with the proper name of him the said Hollingsworth by his own hand, accepted the same, which said order and in-dorsement thereon is now here shewn to the court; by virtue of which said premises a right accrued to the said plaintiff to have and demand the said sum of money of the said defendant, &c.” The second count was for money had and received; and the third on an account stated.
    The defendant pleaded nil debet, on which issue was joined; and he also demurred generally. The demurrer, upon argument, was overruled. And then a verdict was found and judgment rendered for the plaintiff. Upon a supersedeas from the superiour court of law, the judgment was affirmed; and an appeal was allowed to the court of appeals.
    Johnson, for the appellant.
    Eeigh, for the appellee.
    
      
      Pleading and Practice — Declaration — General Demurrer-Effect. — It is a well settled rule that upon a general demurrer to an entire declaration containing two or more counts, if any one count be good, the demurrer must be overruled. The principal case was cited as authority for this rule in Henderson v. Stringer, 6 Gratt. 134; Gray v. Kemp, 88 Va. 202, 16 S. B. Rep. 225; Burkhart v. Jennings, 2 W. Va. 257; Thompson v. Boggs, 8 W. Va. 69; foot-note to Power v. Ivie, 7 Leigh 147 (this note contains an extract from Thompson v. Boggs, 8 W. Va. 69, in which the principal case is cited); Nutter v. Sydenstricker, 11 W. Va. 543.
      For further authority on this subj ect, see foot-note to Henderson v. Stringer, 6 Gratt. 130; monographic note on “Demurrers” appended to Com. v. Jackson, 2 Va. Cas. 501.
    
    
      
      Same — Debt—Bill of Exchange — Statute. — Under statute of Virginia, 1 Rev. Code, ch. 125, sec. 4 (equivalent to Va. Code 1860, ch. 144, sec. 10, p. 629; Va. Code 1887, sec. 2852). an action of debt will lie in the name of the payee of a bill of exchange against the acceptor, provided it be averred in the declaration that the acceptance is signed by the party to be charged thereby or his agent. Regnault v. Hunter, 4 W. Va. 271, citing the principal case. To the same effect, see principal case cited in State v. Harmon, 15 W. Va. 123.
      See further, monographic note on ’ Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118; monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
    
      
      American edition of 1837.
    
   TUCKER, P.

In this case the only question presented arises upon the general demurrer to the declaration, and if any one of the counts is good, that demurrer must be overruled. Now upon examining the forms in Chitty’s very valuable book of precedents, vol. 2, pp. 385, 387,* it is obvious that the second count (for money had and received) and the third count (upon an account stated) are taken verbatim et liter-atim from those forms. The counts are not in assumpsit, as counsel seem to have supposed. Such counts in assumpsit would have been bad, since no promise is laid. The alleged indebtedness supplies its place. I think therefore that even though the*first count be bad, on the ground that debt does not lie against the acceptor of an order (for this is no bill of exchange) yet the demurrer was properly overruled and judgment entered on the verdict. I will add, however, that I have no doubt that under the 4th section of the act, 1 Rev. Code, ch. 125, p. 484, an action of debt lies against the acceptor of an order. Eor the action is given upon any “note or writing by which the person signing the same shall promise or oblige himself to pay a sum of money or quantity of tobacco.” Now the acceptor of an order does by his acceptance oblige himself to pay the amount of the draft to the payee. And from this obligation nothing can release him. It is absolute and unconditional. It does not depend upon the treatment of the paper afterwards by the payee or his indor-sees. Do what they will, the acceptor is bound. His case is altogether unlike that of the indorser, whose indorsement has been very properly decided not to be a note in writing within our statutes, Hatcher v. Lewis, 4 Rand. 152, for his undertaking is collateral, and so far from being absolute, it binds him only in the event that the bill shall appear to have been' properly dealt with, and due notice shall have been given to him of nonpayment and protest. But the acceptor is absolutely bound, and therefore is within the letter, as he certainly is within the spirit of the statute. In the cases of Smith v. Segar, 3 Hen. & Munf. 394, and Wilson v. Crowdhill, 2 Munf. 302, (which however were acceptances on bills of exchange) the influence of this statute does not seem to have been considered. In the recent case of Peasley v. Boatwright, 2 Leigh 195, the original statute, 4 Hen. Stat. at large pp. 273-5, from which the present act is substantially copied, came under examination ; and it was decided by all the judges that debt would lie, under the act, on a promissory note not expressed to be for value received, and without laying any consideration, though it was admitted the defendant might go into the ^'consideration. This case decides nothing indeed as to the action lying against the acceptor; but it clearly establishes that if the acceptance in writing is an obligation to pay within the statute (which I think it is) there is no necessity for setting out any other consideration except the fact of acceptance, which very strongly imports it.

With these views, I am clearly for affirming the judgment; a result not the less gratifying, as it does justice between the parties, and at the same time tends to unfetter judicial proceedings from unnecessary and vexatious technicalities.

BROCKENBROUGH, CABELL and BROOKE, J., concurred.

Judgment affirmed.  