Pendleton v. Galloway et al...... 178 Thomas v. Town of Mount Ver- Webb.... Piatt v. Piatt......... R. non 136 37 Ramsdall v. Craighill et al......... 197 8. ...... 290 Tomlinson and Sperry v. War 25 Y. Young and Van Horne v. Whit- Smith v. Comm'rs of Portage Co. 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 be 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. Fooт, 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 VOL. ix-1 |