
    James B. Lincoln vs. Cyrus Butler & another.
    This instrument, “ Due A. B. on account $42.32. C. D.”, may be declared on by setting out a copy under St. 1852, c. 312, § 2, cl. 9, or be given in evidence under a count for money had and received.
    Action of contract against Cyrus Butler and Annis A. Lincoln, copartners under the name of the Norton Furnace Company. The declaration contained two counts.
    The first alleged that the defendants made the following due bill payable to the plaintiff, and owed the plaintiff the amount thereof, with interest thereon: “ Due James B. Lincoln on account forty two 32-100 dollars. $42.32. Norton, May 19,1858.
    “ Norton Furnace Co., per A. A. Lincoln, Jr.”
    The second count alleged that the defendants owed the plaintiff $42.32 for money had and received to the plaintiff’s use; and the plaintiff filed a bill of particulars on the above instrument.
    Trial in the court of common pleas, in Bristol, at March term 1859, before Aiken, J., who signed this bill of exceptions :
    “ The signature of the defendants to the due bill declared on was admitted. It appeared in evidence that the plaintiff commenced an action against one Springer, and summoned these defendants as trustees of Springer; that the defendants had fifty two dollars in their possession due Springer; that they gave the due bill mentioned in the declaration, and thereupon said suit was stopped; and that the plaintiff demanded payment several times before this action commenced. The defendants asked the court to rule that the plaintiff would not be entitled to recover upon this evidence, on either the first or second count. The court declined so to rule; but instructed the jury that, upon the foregoing facts being proved, they might return a verdict for the plaintiff. The verdict being for the plaintiff, the defendant excepts.”
    
      J. Brown, for the defendants.
    
      H. Williams Sf G. E. Williams, for the plaintiff.
   Shaw, C. J.

It is difficult to comprehend the grounds of this defence. It is admitted that the defendants were carrying on business as partners, in the name of the Norton Furnace Company ; and that A. A. Lincoln, Jr., as their authorized agent, made the instrument in question in their name, for money due to the plaintiff. Whatever the written instrument may be called, it is an admission of a debt due to the plaintiff; and the law implies the promise to pay it.

It is objected that the declaration is not good as for money had and received. Were this a declaration at common law, there might be some weight in the objection; though even in that case, when a debt had been liquidated by a note or memorandum in writing, such note or memorandum was itself evidence of money due, and might be given in evidence on a count for money had and received. But this is under the practice act, where it is sufficient to set out by copy the memorandum in writing; the further averment, that thereby the defendant is indebted to the plaintiff, is a mere legal inference from the memorandum, not a traversable fact. It is good therefore as a declaration on the contract. The case of Osgood v. Pearsons, 4 Gray, 455, is directly in point. Exceptions overruled.  