Prior v. Linsey

6 Ky. 76, 3 Bibb 76, 1813 Ky. LEXIS 41

• Court: Court of Appeals of Kentucky
• Decided: May 31, 1813
• Status: Published

Opinion

OPINION of the court, by

Ch. J. Boyle.

This was an action upon th* case, brought by the defendant in error, as the payee, against the plaintiff in error as the drawer of the following instrument: ‘l Sir — Pay to James Linsey the money that you were to collect of Samuel Prior for me, the sum $ 50,” &c.

The declaration alleges the presentment of this instrument to the person to whom it was addressed ; his refusal to pay, and the assumpsit of the plaintiff in error ; but there is no averment of any contract or consideration upon which the instrument was founded.

The plaintiff in error demurred generally, and upon the demurrer judgment was given against him, to which, he prosecutes this writ of error.

The instrument declared on is evidently not of that description^which can legally constitute the basis or substratum of the action, without an averment of a consideration. It is not a specialty, because it is not sealed : it is not a promissory note, because it contains no promise, either express or implied: and it is not a bill of exchange, because it is payable Out of a particular fund. Unless the instrument were of one of these descriptions, it could not properly be declared on as the foundation of the action. The declaration is therefore substantially defective, and the demurrer to it ought to have been sustained.

The judgment must be reversed, with costs, and the cause remanded, that the court below may enter a judgment upon the demurrer fur the defendant in that court.