bill, &c. court by affidavit, as that there are several material Count stating the and necessary witnesses who reside at a great distance from the county where the venue is laid, the court will change the venue, especially if the defendant admit a particular fact, which, in point of form, exists in the original county'. It was formerly usual to commence the declaration on a bill of exchange, with a statement setting out the custom of merchants relative to the validity of bills of exchange, and that the parties to it were persons within the custom; but this mode of declaring has long been disused, and is improper*; and though it is usual to state that the bill was drawn and accepted "according to the usage and custom of merchants, from time immemorial used and approved of," yet even this reference to the custom in any part of the declaration is unnecessary. In declarations on promissory notes made in England, it is usual to state that the defendant became liable to pay by force of the statute of Anne, which renders these instruments negotiable*; but this is unnecessary. And if the note be made out of England, it would be improper, and perhaps fatal, to state that the note was made according to the statute 5. In stating the cause of action, there are four points principally to be attended to. First, The description of the bill, promissory note, or check. Secondly, How Tidd's Prac. 6th ed. 635. Soper v. Dible, 1 Lord Raym. 175.-Bromwich v. Loyd, 2 Lutw. 1585. Co. Lit. 89 a. n. 7. Soper v. Dible, Lord Raym. 175. In an action upon a bill the defendant demurred, because the declaration did not set out the custom, and the court held it unnecessary, and that the better way was to omit it. 3 Hussey v. Jacob, 1 Lord Raym. 88.-Ereskin v. Murray, 2 Lord Raym. 1542.-Carter v. Dowrish, Carth. 83.-Williams v. Williams, id. 269.-Mannin v. Cary, 1 Lutw. 279. This was determined in Ereskin v. Murray, 2 Lord Raym. 1542. On error after judgment by default, see Lord Raym. 88.-Carth. 83. Lutw. 279. 4 Brown v. Harraden, 4 T. R. 155. 5 Carr v. Shaw, ante, 419.-Bayl. 18. bill, &c. Count stating the the defendant became party to it; and his consequent contract. Thirdly, The mode by which the plaintiff derived his interest in, and right of action on, the instrument; and, Lastly, The breach of the defendant's 1st.The statement of the bill, &c. contract. These will suffice without any statement of a consideration which is implied'. And first, the bill, promissory note, or check (of which a profert is not to be made3), should like all other contracts be stated in the declaration, as it was really made in terms, or according to its legal operation3; and if there be a variance in any material point, it will be fatal, though stated under a videlicet 3. Thus where in an action on a note made by the firm of Austin, Strobell, and Shirtliff in those names, the declaration was against them by the names of Austin Strobell and Shutliff, and stated that such defendants made the note, the variance was holden fatal "; and if a bill drawn by the name of Conch be declared upon in an action against a third person, as drawn by Crouch, such variance is also fatal. And under a count for usury, in discounting bills, one of which was described as drawn on a certain person, to wit, John K. it is a fatal variance, if the bill produced appear to be drawn on Abraham K.⋅ So where in an action by the indorsee against the acceptor, the declaration described the bill as drawn Ante, 12, 13. 87, &c.-Bishop v. Young, 2 Bos. & Pul. 81. Master v. Miller, 4 T. R. 338.-Odams v. The Duke of Grafton, Bunb. 243. Suister v. Coel, 1 Sid. 386.-1 Salk. 215.-Com. Dig. tit. Pleader, O. 3.-Tidd. 6th ed. 618. 3 Per Gibbs, C. J. in Waugh v. Russel, 1 Marsh. 217.-Heys v. He seltine, 2 Campb. 604-Selw. 4th ed. 350.—1 Chitty on Plead. 3d ed. 297. 303. 308. Bristow v. Wright, Dougl. 667.-Gordon v. Austin, id. 4 T. R. 611. as to variances in general, see 1 vol. of Chitty on Pleading, 3d ed. 303, &c. 5 White v. Wilson, 2 Bos. & Pul. 116.-1 Chitty on Pleading, 368. 6 Gordon v. Austin, 4 T. R. 611.-N. B. There is a singular difference between the folio and octavo editions in the statement of this case, the last does not notice the mistake in the surname, which was the material objection. 7 Whitwell v. Bennett, 3 Bos. & Pul. 559.-Selw. 4th ed. 349. of the bill, &c. by one William Turner, and indorsed by the said Wil- 1st.The statement liam Turner to the plaintiff, and the bill produced in evidence was drawn by Wingfield Turner, the variance was held fatal'. But where the promissory note was signed "for Bowes, Hodgsons, Key, and Co." and they were sued, and one of them was declared against by the name of Thomas Kay (but whose real name was John Key, commonly pronounced Kay), the judge was of opinion, that the misnomer was no ob jection, it being proved that the real partner had been sued, and served with the process, though under a mistaken christian name; and that the variance between Key and Kay was immaterial, they being idem sonans2. Aud in another case where the plaintiff declared in the name of Edward Boughton upon a bill of exchange, drawn by him, payable to his own order, and accepted by the defendant, and also upon the common counts, and it appeared that the plaintiff's real name was Edmund, and that in that name he had drawn the bill, yet the plaintiff recovered 3. And it has been recently held, that a variance between the real name of an indorser, and that which is alleged in the declaration, and appears on the bill, is immaterial+. If one of several persons, acceptors of a bill, were an infant, the holder may declare on it, as accepted by the adult only, in the names of both; and if the defendant pleads in abatement, that the other partner ought also to have been sued, the plaintiff may reply his infancy; and it is no departure, and it is most proper, not to state that the infant was a party to the instrument. And if a bill of exchange purports to have been drawn by a firm consisting of several per 'Le Sage v. Johnson, Forrest's Rep. 23. * Dickenson v. Bowes and Others, 16 East. 110. Boughton v. Frere, 3 Campb. 29, but note, it does not appear from the report whether the plaintiff only recovered upon the com mon counts. Forman v. Jacob, 1 Stark. 47. * Burgess v. Merrill, 4 Taunt. 468.-1 Chitty on Plead. 3d ed. 35. of the bill, &c. 1st. The statement sons (as by "Ellis, Needham, jun. and Co."), in an action by an indorsee against the acceptor, the declaration may aver in the plural that certain persons using the firm drew and indorsed the bill, although in point of fact the firm consisted only of a single individual, the acceptor being estopped from disputing the fact'. So where a declaration described a bill of exchange as directed to the three defendants, and accepted by them, and it was proved to have been directed to, and accepted by a fourth party also, who was dead, this was held no variance; and in an action against one of several makers of a joint or several promissory note, the describing it as the separate note of the defendant without noticing the other parties, is no variance'. If it be alledged in the declaration, that defendant on such a day (without laying it under a videlicet) drew a bill of exchange without alleging that it bore date on that day, a mistake of the day will not be material, but if the words "bearing date the same day and year aforesaid" be inserted, then a variance would be fatal +. In general the date of the bill or note should be stated, and if there be no date, then the day it was made, and if that cannot be ascertained, then the first day it can be proved to have existed. And where in an action on a foreign bill payable at double usance from the date thereof, and the declaration stated the bill to have been drawn on such a day, but did not state the date, he court held it sufficient, and that they would intend that it was dated at the time of drawing it. And where a second count stated, that afterwards, to wit, on the day and year aforesaid, the defendant drew a certain other bill of exchange, payable two months after the date I Bass v. Clive, 4 Campb. 78.-4 M. & S. 13. S. C. 2 Mountstephen v. Brooke and Others, 1 Bar. & Ald. 224. 3 Id. ibid. and ante, 433, 4. *Coxon v. Lyon, 2 Campb. 307, 8.—Selw. 4th ed. 350.—Fitzgib. 130. 5 Ante, 77.-Bayl. 174, 5. De la Courier v. Bellamy, 2 Show. 422. approved of in Hague v. French, 3 Bos. & Pul. 173. of the bill, &c. thereof, without mentioning any express date in either 1st. The statement count, the last count was held sufficient, the court intending the date to have been the day on which the bill was alleged to have been made. If a bill or note by mistake, has been dated contrary to the intention of the parties, the declaration may run thus, " on &c. (the time intended) at, &c. made, &c. bearing date by mistake, on, &c. but meant and intended by the said A. B. and C. D. to be dated on the said, &c. and then and there delivered, &c. by which said note he the said C. D. then and there promised to pay, two months after the date thereof, (that is to say, after the said, &c. when the said note was so made and intended to be dated as aforesaid,) to the said A. B." &c. It has been held, that in a declaration upon a bill or note importing to be payable within a limited time after the date, and dated on a particular day, the precise day must be stated, and that if a day upwards of six years before the commencement of the action be stated, and the defendant plead actio non accrevit, the plaintiff cannot recover, but this doctrine may be questionable 3. It is usual also to state the place at which the bill or note was drawn, as thus "that the drawer on, &c. at Liverpool, to wit, at London, &c. (the venue)". It has been considered that in a declaration on a foreign bill, the place at which it bears date must be stated, and that some place in England or Wales should be subjoined, by way of venue, under a videlicet, thus, 1 2 Hague v. French, 3 Bos. & Pul. 173. Stafford v. Forcer, 10 Mod. 511. cited 1 Stra. 22. In an action on a note dated in 1704, defendant pleaded that the cause of action did not accrue within six years, the plaintiff replied a bill filed in 1714; and that the cause of action accrued within six years of that time, and after verdict for the plaintiff, the court arrested the judgment, because it was stated that the note was made and dated in 1704, and then the cause of action must have accrued above six years before 1714; but see Leaper v. Tutton, 16 East. 420. 3 In Trinity Term, 1818, K. B. the court held, that on a guarantee of the debt of another, the plaintiff might give in evidence a verbal promise to revive the original undertaking in writing, so as to defeat a plea of actio non accrevit infra sex annos. |