
    Hart, Dubois, & Co. v. J. & J. Ayres.
    When a promissory note is given in evidence under the money counts in as* sumpsit, no other defence will be received against it, than would he received if the note was offered in evidence under a special count upon it.
    Assumpsit for money had and received: plea, non-assumpsit. From Cuyahoga. The only evidence offered by the plaintiffs, was a promissory note of the defendants, dated Oct. 1st, 1834, to the plaintiffs or order, for $336 70, payable on the first of January then next. The defendants then offered to prove that the note was executed and delivered for the purpose of taking up a note previously given, for some interest in a patent right. Upon the admission of this evidence, the judges on the circuit were divided in opinion.
    S. J. Andrews, J. A. Foot, and Hoyt, for plaintiffs,
    insisted that where a note is given in evidence under a money count, and the legal liability of the defendant is admitted, the suit can not be defeated by proof that the consideration of the note was not money. The point is expressly decided in Hughes v. Wheeler, 8 Cow. 77. It is not necessary in a suit for money had and received, to prove the actual receipt of money. Randall v. Rich, 11 Mass. 494 ; Beardsley v. Root, 11 Johns, 464; Tuttle v. Mayo, 7 Johns. 132; 3 Mass. 403 ; Clark v. Pinney, 6 Cow. 297.
    *H. Foote, for defendants.
    The simple question is, whether a promissory note given by the'defcndants to the plaintiffs, and offered in evidence under a count for money had and received, is conclusive evidence of the receipt of money, or open to explanation? We contend the note is only prima, facie evidence of the receipt of money, and the fact open to other evidence. He cited, Ch. on Bills, 8th Am. ed. 67, 596 7, 575, 592 ; Nightingale et al v. Devisme, 5 Bur. 2589 ; 2 Kent. C. 80 ; 1 Esp. C. 117 ; 2 T. R. 71; 5 Pick. 391; 6 Conn. 521; 8 Cow. 77; 2 Phil. Ev. 10 ; 2 Stark. Ev. 301, 2, 4, 5; 2 Esp. C. 245; Farr v. Price, 1 East. 55 ; Brown v. Watts, 1 Taun. 353 ; Morley v. Peet, 5 Esp. 121; 1 Sand. P. & Ev. 278; 1 Salk, 283 ; Bayly on Bills, 165, 487 ; Com. on Con. 340 ; N. J. Banking Co. v. Myers, 7 Halst. 141; 1 Wh. Selw. 331; Gibson v. Merritt, 3 Blk. 602; Whitwell v. Bennett, 3 B. & P, 559; Barlow v. Bishop, 1 East. 432; Page’s ad. v. Bk. of Alexandria, 7 Wheat. 35; Sheely v. Mandeville, 7 Cranch. 209 ; French’s ad. v. Bk. of Alexandria, 4 Cranch 141; Mackey v. Davis, 2 Wash. 219 ; Godall v. Stewart, 2 Hen. & M. R. 105.
   By the Court,

Grimke, Judge:

Judgment for plaintiffs.  