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may be drawn up, it is sufficient, unless the defendant will undertake to swear that he has been misled by the inaccuracy. Day v. Bower, Ellenborough, C. J. i Campb. 69, n. And although the general rule is, that the plaintiff, who has delivered an imperfect particular, shall be restricted in his evidence, and not permitted to recover any thing ultra the contents of such particular, yet if the defendant, in attempting to defeat the restricted claim of the plaintiff, gives him a better case than he was at liberty to make for himself

, he will be entitled to a verdict for all that is proved due to him; what he could not have insisted on as a right he may

receive as a boon. Hurst v. Watkis, Ellenborough, C. J. i Campb. 68. Bills of particulars are not to be construed with all the strictness of declarations. Per Mansfield, C. J. in Brown v. Hodgson, 4 Taunt. 190. See also Davies v. Edwards 3 M. & S. 380. and Lambirth v. Roff, 8 Bingh. 411. Disbursements are recoverable under an item for cash advanced.Harrison v. Wood, 8 Bingh. 371.

Proceedings subsequent to the Declaration.The plaintiff having declared, the defendant, if he has not any defence, either compromises the action by paying or giving security for the debt and costs; or he lets judgment go by default. If the holder commences one action against the drawery, and another against the indorser, the court will stay all the proceedings upon payment of the amount of the bill and the costs of the two actions, without regarding the costs which may have been incurred in actions brought by the holder against any other parties to the bill. But when the application for staying proceedings, comes from the acceptor, who is the original defaulter, the court will not regard it, except upon payment of the amount of the bill and costs in all the actions. When the defendant suffers judgment to go by default, the plaintiff must, before he is entitled to final judgment and execution, ascertain the amount of the debt. Formerly this was done by executing a writ of inquiry of damages; but of late years, in the courts of King's Bencha and Common Pleast, and now in the Court of Exchequer, in actions upon promissory notes and bills of exchange, where it appears on the face of the declar

y Smith v. Woodcock, 4 T. R. 691. S. b Rashleigh v. Salmon, case on a pro

P. on a promissory note, Windham missory note, C. B. June 15th 1789. v. Wither, and Windham v. Trull, 1 H. Bl. 252. Andrews v. Blake, Str. 515.

case on a bill of exchange, C. B. ż Admitted per Cur. in Smith v. Nov. 23. 1790. i H. Bl. 529. Woodcock, 4 T. R. 691.

c See Biggs v. Stuart, 4 Pri. (Ex.) a Shepherd v. Charter, case on a bill 134.

of exchange, 4 T. R. 275. VOL. I.

2 B

ation, that the actions are brought on the notes or bills, and the money mentioned therein is not foreign money, it is usual to apply to the court for a rule to shew cause why it should not be referred to the master in B. R. and prothonotary in C. B., and in Exchequer to see what is due for principal and interest, and why final judgment should not be signed thereon, without executing a writ of inquiry; which rule is made absolute on an affidavit of service, unless good cause be shewn to the contrary. In vacation time application may be made to one of the judges of B. R. or C. B. at chambers. N. The rule ought not to be applied for on the day of signing interlocutory judgment, but some days afterd. The rule to compute will be allowed, although bill has been destroyede. Where the bill of exchange is for foreign moneyf, e. g. for Irish money, the court will not permit the master to ascertain the value. In this case, therefore, the plaintiff must have recourse to a writ of inquiry; upon the execution of which it is now holdene, notwithstanding former decisions to the contraryh, that it is not in any case necessary to prove the bill of exchange, the bare production of it being sufficient; for by suffering judgment to go by default, the defendant admits the cause of action to the amount of the bill. The bill, however, must be produced to the jury, in order that they may see whether or not any part of it has been paid.

Pleading under the New Rules.

By R. G. H. T. 4 W. 4. No. 2, in all actions upon bills of exchange and promissory notes, the plea of non-assumpsit shall be inadmissible. In such actions, therefore, a plea in denial must traverse some matter of fact; ex. gr. the drawing, or making, or indorsing, or accepting, or presenting, or notice of dishonour, of the bill or note.

No. 3.-All matters of confession and avoidance, including not only those by way of discharge, but those which shew the transaction to be either void or voidable, on the ground of fraud or otherwise, shall be specially pleaded, ex. gr.-illegality of consideration, drawing, indorsing, accepting, &c. bills or notes, by way of accommodation, &c. If the plea be, that no consideration was given for the bill or note, and the replication, that there was; the onus lies on the defendant to prove that there was not any consideration, although the plaintiff, in his replication, alleges the affirmative. To a declaration by indorsee against acceptor, the defendant cannot plead that the bill was accepted by him without consideration from the drawer; for such is not inconsistent with plaintiff's legal demand, indorsement prima facie importing consideration! Under the new rules, every matter, independent of the making of the promise, should be affirmatively stated; for the object of those rules was, to make each side understand what they were come to try. The court, therefore, discountenances pleas in the negative. Hence, if defendant relies on want of consideration, he should state, in his plea, affirmatively, such facts as shew the want of it. Assumpsit by the indorsee against the acceptor of a bill. Plea, that the defendant accepted the bill for the accommodation of the drawer, and that the drawer did not give, nor did he the defendant receive, any consideration for his accepting or passing the bill; that the drawer indorsed the bill to the plaintiff without any consideration, and that the plaintiff held the bill without consideration; it was holden”, that the onus probandi lay on the defendant; that where there is not any fraud, or any suspicion of fraud, but the simple fact is, as here, the plaintiff is not called upon to prove, that he gave value for the bill. When a bill has been altered after acceptance, the defendant may take advantage of it, under a plea', that he did not accept the bill declared on. In this case the defendant has the right to begin P, and the bill ought to be produced without notice.

c Osborne v. Noad, 8 T. R. 648.
d Gordon v. Corbett, Smith's R.

e Clarke v. Quince, 3 Dow. P. C.26.

f Maunsell v. Lord Massareene, 5 T.R.

87. g Green v. Hearne, 3 T. R. 301. h Snowdon v. Thomas, 3 Wils. 155: 2

BI. R. 748, S. C.


In an action by the indorsee of a bill against the acceptory, it is not necessary for the plaintiff to prove the hand-writing of the drawer, for when a bill is presented for acceptance, the acceptor is supposed to look at the hand-writing of the drawer, and on that account he is precluded from disputing it afterwards, and cannot give in evidence even a forgery

i Lacey v. Forrester, 5 Tyrw. 567. overruling Heath v. Sansom, 2 B. &

See Whitaker v. Edmunds, 1 Ad. Ad. 291. and El. 638.

o Cock v. Coxwell, 2 Cr. M. & R. k Low v. Chifney, 1 N. C. 267.

291. 1 Reynolds v. Ivemey, 3 D. P. C. p Barker v. Malcolm, 7 C. and P. 101. 453.

q Jenys v. Fawler, Str. 946. coram m Easton v. Pratchett, 1 Cr. M. and Raymond, C. J. Per Buller, J.

R. 798, 4 Tyrw. 472. Stoughton v. in i T. R. 655. S. P. Per Dam

E. of Kilmorey, 2 Cr. M. and R. 72, pier, J. in Bass v. Clive, 4 M, & S. n Mills y. Barber, 1 M. & W. 425. 13 S. P.

of such hand-writing. But the hand-writing of the first indorser must be proved, because the acceptor is not supposed to look any further than the hand-writing of the drawert. The acceptance of a bill drawn by procuration, admits the drawer's hand-writing and the procuration 4. But although the bill be indorsed by the same procuration, the date thereof not appearing, the acceptance does not admit * the procuration to indorse. Proof, first, that J. S. was the confidential clerk of the defendants, and had been introduced by them to their bankers, as one to whom they were to pay the same attention as they would to the defendants themselves : 2ndly, that defendants had, in repeated instances, recognized his authority to draw both bills and cheques by procuration for them; lastly, that on three occasions J. S. had indorsed bills by procuration for them, on one of which occasions the defendants must have known of it; and in the other two instances, the defendants had received the money raised upon the bills: it was holden”, that although an authority to draw does not in itself import an authority to indorse, yet the evidence of such authority to draw was not to be withheld from the jury, who were to determine on the whole evidence, whether such authority to indorse existed or not, and from the foregoing facts they might well draw the inference that it did. A bill of exchange was shewn to the defendant, whose name appeared on the bill as acceptor, and he was asked whether it was his hand-writing; he said it was, and that the bill would be duly paid : Lord Ellenborough, C. J. held, that this accredited the bill, and the plaintiff having been thereby induced to take it, the defendant could not set up as a defence that his name, as written on the bill, was a forgery. Leach v. Buchanan, 4 Esp. N. P. C. 226. A forged bill was drawn upon the plaintiff, which he accepted and paid to an innocent indorsee, who had given a valuable consideration for the bill; on discovering the forgery, the plaintiff brought an action for money had and received, to recover back the money; it was holden, that the action would not lie; Lord Mansfield, C. J. observing that it was incumbent on the plaintiff to have been satisfied as to the drawer's hand-writing before he accepted the

bill. Price v. Neal, 3 Burr. 1354, 1 Bl. R. 390. S. C. The defendants took a bill, accepted payable at the plaintiffs, who were the drawee's bankers, and indorsed it to their, the defendant's, agents, to whom the plaintiffs paid it when due, and seven days after sent it as their voucher to the drawee, who apprised them that the acceptance was forged. Held by three Js. against Chambre, J. that the plaintiffs could not recover from the defendants the amount which they had thus paid them on the forged acceptance. Smith v. Mercer, 6 Taunt. 76. But where the plaintiffs (bankers) discounted for the defendants (bill-brokers) a bill of exchange which the latter did not indorse, and it turned out that the signatures of the drawer and acceptor (the latter of whom kept an account with the plaintiffs) were forged; it was holden”, that the defendants were liable to refund the money. Where a bill of exchange purports to be drawn by a plurality of persons, and is so declared on, the acceptor of such bill will not be permitted to prove that the supposed firm consisted of one person only. Bass v. Clive, 4 M. and S. 13. Where a bill is drawn in the name of a fictitious person, payable to the order of the drawer, the acceptor is considered as undertaking to pay to the order of the person who signed as drawer; and, therefore, an indorsee may bring evidence to shew, that the signature of the supposed drawer, to the bill and to the first indorsement, are in the same hand-writing. Cooper v. Meyer, 10 B. and C. 468.

t Smith v. Chester, 1 T. R. 654. Coo- u Robinson v. Yarrow, 7 Taunt. 455.

per v. Lindo, B. R. London Sittings x S. C.
after M. T. 52 G. 3. S. P. as to y Prescott v. Flinn, 9 Bingh. 19.
hand-writing of second indorser, be?
ing alleged in declaration.

Action by the indorsee against the indorser of a bill of exchangea. The declaration stated several indorsements prior to that of the defendant, which was immediately to the plaintiff. A question arose, whether upon proof of the defendant's hand-writing, it was necessary to prove the handwriting of any of the prior indorsers, and particularly that of the original payee. The plaintiff's counsel contended, that the defendant's indorsement admitted all antecedent indorsements; that even if they were forged he would be liable; that he was to be considered as the drawer of a new bill of exchange, and that his contract was very different from that of the acceptor, who only undertook to pay to the payee or his order, and against whom, therefore, a title through the payee must be established. Lord Ellenborough was of this opinion, and the plaintiff had a verdict. Action for money paidb by plaintiffs, Messrs. Forsters, Lubboek, and Co., bankers for defendant. A bill of exchange was drawn on defendant by one Hanley, payable to his own order, which

z Fuller and others v. Smith, 1 R. and

M. 49.

a Critchlow v. Parry, B. R. 2 Campb.

182. b Forster v. Clements, 2 Campb. 17.

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