Mullaly v. Holden

• Decision Date: 16 January 1878
• Citation: 123 Mass. 583
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Martin Mullaly v. George H. Holden & another

123 Mass. 583

Martin Mullaly v. George H. Holden & another

Supreme Court of Massachusetts

January 16, 1878

Middlesex. Writ of Error to reverse a judgment rendered by the Superior Court, at March term 1877, affirming a judgment on default of the First District Court of Eastern Middlesex for $ 50 and costs, in an action of contract brought by George H. Holden and Warren Holden against Martin Mullaly. Plea, in nullo est erratum.

The error assigned was that the declaration alleged no legal cause of action. The declaration, as set forth in the record was as follows:

"And the plaintiffs say that the defendant passed to them a check a copy whereof is hereto annexed, and the same was cashed by them; that they duly presented said check for payment, but it was not paid, there being no funds to meet it; whereupon they duly notified the defendant, who refused to repay the amount of the check or any part thereof; wherefore the defendant owes the plaintiffs the said amount and interest thereon.

"And for the same cause of action, the plaintiffs further say, that the defendant was indebted to the plaintiffs in the sum of $ 16, and presented to them in payment thereof said check, and the plaintiffs declined to accept the same, whereupon the defendant agreed to guarantee it, the plaintiffs thereupon receipting said indebtedness and paying the defendant the balance of $ 34; that they duly presented said check for payment, but it was not paid, there being no funds to meet it, whereupon they duly notified the defendant, who refused to repay the amount of said check or any part thereof; wherefore he owes the plaintiffs the said amount and interest thereon."

Annexed to the declaration was a copy of the check as follows "$ 50. Boston, November 15, 1876. Shoe & Leather National Bank. Pay to the order of M. Mullaly or bearer fifty dollars. Payable ...