
    Jolliffe v. Higgins.
    Decided Oct. 21st, 1817.
    Drafts — Rights of Payee against Drawer. — The payee of a draft or order, purporting to he for money lodged by the drawer in the drawee’s hands, belonging to such payee, may recover of the drawer, upon the drawee’s refusing payment; (timely notice of such refusal being given); tho’ such draft or order be not negotiable as a bill of exchange; being drawn on a particular fund, — not in favour of the payee “or order,” nor in terms, “for value received.”
    Same — Assumpsit by Guardian. — A guardian may bring assumpsit in his own name, upon a draft or order payable to himself as guardian, for money due to his ward.
    In an action of assumpsit brought by Robert Higgins against John Jolliffe, in the Superior Court of Frederick County, the declaration contained two Counts; the first special, on an order drawn by the defendant, August IS, 1810, on a certain Obed Waite, directing him to pay to the plaintiff the sum of $108 85, “which the defendant by the said order stated he had lodged in the hands of the said Waite, and was the property of Major Higgins, (meaning the said plaintiff,) as guardian of his children by Mary Higgins, late Mary Jolliffe;” which order was drawn “for a good and valuable consideration, that is *to say, for the payment of the said sum of money, belonging to the plaintiff as guardian aforesaid, and was duly presented, on the 19th of August 1811, to the said Waite, who, by his indorsement thereon, refused to pay the same;” &c. The other was a general Count,- for money had and received by the defendant for the “use of the plaintiff as guardian as aforesaid.” Plea non assumpsit.
    At the trial the defendant demurred to the evidence; the plaintiff having shown and proved to the jury the order, with the protest, or written refusal of Obed Waite to pay it; which, being set forth in hsec verba, corresponded with the description thereof in the declaration; and also proved that, at several times, in the fall 1 ‘of 1811, and previous to the commencement of this suit, there was notice of the protest given by the plaintiff to the defendant, and a demand made of payment of the amount; that the drawee was, at the time of the draft, and ever since, a man of sufficient property to pay it, and of undoubted solvency; and also that he had not, at the time of the draft, or ever after, any fund in his hands, out of which he ought to have paid the said draft, or any funds of the drawer, whatsoever.”
    The Jury found for the plaintiff $108 85 cents damages, with legal interest thereon from the 15th of August 1810, subject to the opinion of the Court upon the Demurrer.
    • The Court having entered judgment for the plaintiff, the defendant obtained a writ of Supersedeas, from a judge of this Court.
    Wickham for the plaintiff in error.
    Suit could not be maintained upon the writing in question, as a bill of exchange; it being drawn on a particular fund, and omitting the words “or order,” which are absolutely necessary.(a) Besides; — our act of Assembly making bills negotiable, points out a particular form and mode of protest, which has not been observed in this case. If I am correct in this, no action is sustainable on the first Count in the declaration.
    2. Whenever there is a demurrer to evidence, and it appears that the evidence applies to the defective Count ’’only, no judgment can be given for the plaintiff. Here, admitting the second Count to be a good one, there is no evidence applying to that Count.
    3. If any person was entitled to sue, the children for whom Higgins was guardian, might, but not Higgins himself.
    Eeigh contra.
    I admit this order or draft is not a bill of exchange: but that question is important only where the negotiability of the paper is the point in controversy. Tho’ not negotiable, it is binding between the parties to the transaction. The payee may recover of the drawer, (b) I admit too, that the non acceptance in this case, is not a legal protest; but that is unimportant.
    2. The second Count is substantially good, and the evidence does apply to it; for a draft is, virtually, an acknowledgment that the drawer has money belonging to the payee. Even if the first Count be bad, it may operate as notice of the special matter intended to be offered in evidence upon the other. The general money Counts are inserted, on purpose to provide for the event of the special Count’s being found defective, (c)
    3. When a writing is given to a guardian or executor, he may bring suit upon it. So also may a factor. So, if an executor takes a bond for property of his testator sold by bita, he may sue upon it and declare in the debet and detinet.
    Wickham in reply.
    A writing' not undei4 seal, does not in itself import a consideration. A note of hand, being not ‘ ‘for •value received.” may be given in evidence; but the consideration must be proved. If, therefore, this draft had been good in other respects, it could not support the action, no consideration appearing. Drawn, as it is, without the words “for value received,” and not payable to the payee “or order,” it may have been given for the purpose of getting the money of the drawer, for his ■own benefit, out of the drawee’s hands. There is nothing to show that the payee is entitled to it. 
    
    Where the writing is only evidence of a debt due to the Ward, the suit must be brought by the Ward himself, *not by the Guardian. But where it is the foundation of the action, as in Peter, v. Cocke, 1 Wash. 257, the case is otherwise: the bond being taken to A. B. “guardian, executor, or factor, &c.” the words of addition may be rejected. The rule is, that if the document itself be one that can be declared upon, the guardian, executor, or factor may sue upon it; but if it be such as can only be given in evidence of a debt, the person to whom the debt is due must bring the suit.
    
      
       Order — Liability of Drawer. — An order drawn upon sufficient consideration cannot be revoked whether accepted or not; and. in the absence of an acceptance, is such an evidence of debt that an action will lie thereupon against the drawer; and, after acceptance by the drawee, an action will lie against him. Carr v. Summerfield 47 W. Va„ 155, 34 S. E. Rep, 812. citing the principal case.
      The decision in principal case is discussed and approved in Averett v. Booker, 15 Gratt. 166.
      See generally, monographic note on "Bills, Notes and1 Checks” appended to Archer v. Ward, 9 Gratt. €22.
    
    
      
       Guardians — Suit in Own Name. — Where there is a demand on securities taken by a guardian in his own name, the guardian may sue in his own name and it is not material that the omission to show the authority of the plaintiff to sue as guardian, for whom he is guardian, and that he has qualified, occurs in the bill. Cochrane v. Hyre, 49 W. Va. 315, 38 S. JS. Rep. 555, citing principal case.
      See generally, monographic note on “Guardian and ward” appended to Barnum v. Frost, 17 Gratt. 398.
      (a) Gerard v. Lacoste, 1 Dallas 194; Dawkes and wife v. De Lorane, 3 Wils. 213; Banbury v. Lisset, 2 Stra. 1212.
      (b) 1 Esp. N. P. 25.
      (c) 3 Term Rep. 174,182; 3 Burr 1516; Chitty on Bills, 191, 192
    
    
      
       Note. The words of the order itself shewed it was drawn for money belonging to the payee, which the drawer asserted was lodged by himself in the hands of the drawee. — Note in Original Edition.
    
   Deigh.

This distinction is a new one to me. I should like to see an authority in support of it. Whether assumpsit or debt be brought on a promissory note, in either case the note is but evidence of the debt. According to Mr. Wickham’s argument, an executor may maintain debt on a note to himself, but cannot assumpsit.

The Court affirmed the Judgment.  