the defend

the back of the bill, was written under his authority by his wife; 2dly. How and it was held that the defendant having, after notice of non-ant became payment, promised to pay, was not at liberty to object that the party to the bill, &c. indorsement was not in the hand-writing of the payee himself; (a) but had it not been for such promise, the variance would have been fatal. (b) And in an action against the drawers of a bill of exchange, the declaration stated, that the defendants. made "the bill," their own proper hands being thereto subscribed;" and in fact their firm of A. and Co was subscribed to the bill, and Lord Ellenborough said, "Had it been their own proper hands,' I should have clearly held it sufficient. As it stands, I entertain some doubt; but I will not nonsuit." (c)

It is advisable to state the true date of the acceptance of a bill payable after sight, and in any other case where the acceptance is dated of a day different to the date of the bill, it should be described accordingly. (d) But it seems that a variance is not material. (e) And though it has been considered that if the plaintiff allege in terms, that the acceptance was made before the time limited by the bill for its payment, the plaintiff will be precluded from giving in evidence an acceptance afterwards. (f) This doctrine has been disputed by high authority. (g) And where the plaintiff, as indorsee of a bill, against the defendant, as acceptor, stated in his declaration, that the defendant became liable to pay and promised to pay according to the tenor and effect of the bill and his acceptance, it was held, that he might, under the plea, that the causes of action did not accrue within six years, give in evidence a promise long after the bill was due. (h)

On the before-mentioned rule that the plaintiff should not state. more of the bill than is essential to his title, it is not necessary er advisable in an action against the drawer or indorser of a bill,

(a) Helmsley v. Loader, 2 Campb. 450.-Payl. P. & A. App. no. 2.-, Bayl. 182, 3.

(6) Levy v. Wilson, 5 Esp. 180.-Payl. P. & A. 275, 6.—Bayl. 183. (c) Jones & al. v. Mars & al. 2 Campb. 305.

(d) Bayl. 181.

(e) Forman v. Jacob, 1 Stark. 46; and see Young v. Wright, 1 Campb. 139.-Lord Raym. 364.-12 Mod. 212.

Jackson v. Piggott, Lord Raym. 364.-12 Mod. 213.

(g) Bayl. 181.

(4) Leaper. Tutton, 16 East. 420.

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2dly. How to state that the drawee accepted it, but if it be stated, it must,

the defend

ant became in an action against the drawer be proved, unless it be shewn that he indorsed the bill after it was accepted, or that after it was due he promised to pay. (a)

party to the bill, &c.

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Sdly. How the plaintiff

became a party and entitled thereto.

*If the engagement of either of the parties were conditional, it must be described accordingly, and therefore a conditional acceptance must be so stated, and if declared upon as an absolute engagement, the variance will be fatal, although the condition has been performed. (b) We have already considered when it is necessary to describe the acceptance as payable at a particular place and when that statement would be improper. (c)

Thirdly, A plaintiff, who sues upon a bill or check, or note, must shew in his declaration his right to sue thereon, in the same manner as every other plaintiff must shew a sufficient title, to enable him to maintain the action which he brings. (d) Thus, in an action by the indorsee or bearer of a bill, it is necessary to shew that it authorized a transfer, and he must also state that the transfer was made. (e) In general, whatever forms a constituent part of the plaintiff's title, must be set out correctly. (f) But this rule is liable to similar exceptions to that which makes it necessary to set out the instrument as made; and he may set it out, as in case of a bill payable to the order of a fictitious person, according to the effect given to it by law. (g) It has been decided that the payee of a bill or note payable to his own order, may state it to have made payable to himself; (h) and a note payable to a married woman, and indorsed by her husband, may be stated to have been payable to the husband. (i) An indorsee may, it is said, declare against his immediate indorser, as on a bill of exchange [*161] made by the defendant, *directed to the acceptor, and payable to

(a) Jones v. Morgan, 2 Campb. 474.-Bayl. 181.

(b) Langston v. Corney, 4 Campb. 176.-Swan v. Cox, 1 Marsh. 176. ante,

(f) Per Lord Kenyon, in Gwinnet v. Phillip, 3 T. R. 645.—Gibson v. Minet, 1 Hen. Bla. 605, 6.

(g) Ante, 83, 4.

(h) Frederick v. Cotton, 2 Show. 8.-Smith v. M'Clure, 5 East. 476. 2 Smith's Rep. 43. S. C.

(i) Barlow v. Bishop, 1 East. 432.--3 Esp. Rep. 266. S. C.-Ankerstein v. Clarke, 4 T. R. 616,

the plaintiff, the act of indorsing being similar in its operation to 3dly. How that of making a bill, but this is not the practice. (a)

the plaintiff became a

In general, however, the plaintiff's title should be stated ac-party, &c. cording to the facts, and if he claim as a remote indorsee, every indorsement is usually set forth: but where the first indorsement is in blank, and the plaintiff is apprehensive he will not be able to prove all the subsequent indorsements, it is proper to add a count stating the plaintiff to be immediate indorsee of some prior indorser. In such case, however, it is said, that in order to render the evidence correspondent to the declaration, all the subsequent names must be struck out of the bill before or at the time of the trial; (b) which may be done, notwithstanding there has been a subsequent indorsement in full. (c) la this case, in order to avoid unnecessary expence, the indorsement may be described concisely thus: "And the said A. then "and there indorsed and delivered the said bill of exchange to "the said B., and the said B. then and there indorsed and deli"vered the said bill of exchange to the said C. &c." In an action against a remote indorser, though there be several indorse ments between that of the payee and the defendant, the plaintiff may declare, as on an immediate indorsement by the payee to the defendant, and by him to the plaintiff, and need not notice the intermediate indorsements. (d) (1)

It has been recently decided, that in an action against the indorser of a bill of exchange, in which the declaration stated several prior indorsements, it is not necessary to prove any indorse

(a) Brown v. Harraden, 4 T. R. 149.

(6) Anonymous, 12 Mod, 345.--Peacock v. Rhodes, Dougl. 633.—Anony. mous, Holt, 296.—Kyd. 206.

(c) Ante, 175.--Bayl. 184.

(d) Chaters v. Bell, 4 Esp. Rep. 211-Bayl. 183.

(1) It is not necessary to state the indorsement to be “for value received;" and if so stated the averment is surplusage, and need not be proved. Wilson v. Codman's Ex. 3 Cranch, 193. But see Welch v. Lindo, 7 Cranch's Rep. 159. An indorsement is prima facie evidence of being made for the fall value. Riddle v. Mandeville, 5 Cranch, 322. But it is otherwise if made "without recourse." "Welch v. Lindo. And if the indorsement be restrictive as to a right against the indorser, as if it be "without recourse" to the indorser, it is not necessary in a declaration against the maker by the indorsee to state such restriction. Wilson v. Codman's Ex.

But the words "for value received," in setting forth a promissory note in a declaration are words of description, and not an averment; and therefore if the words are not in the note, the variance is fatal. Saxton v. Johnson, 10 John. Rep. 418.

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3dly. How ments on the bill prior to the defendants, though it is otherwise the plaintiff became a in an action against the acceptor; consequently, where a remote party, &c. *indorser is sued, there will be no risk in stating all the prior indorsements in the declaration. (a) And in another case it was held, that in an action by the indorsee against the acceptor, where several indorsements had taken place, and which were laid in the declaration, and are consequently necessary to be proved in general, yet if the defendant applies for time to the holder and offers terms, it is an admission of the holder's title, and a waiver of proof of all the indorsements except the first. (b) On an indorsement, for less than the full sums mentioned in the bill or note, the plaintiff must describe the same accordingly, and shew that the residue was paid. (c) In describing the indorsement, it is not advisable to allege that the indorser's hand-writing was thereunto subscribed, and if that allegation be inserted and the bill appear to have been indorsed by an agent, the variance will be fatal. (d)

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If a note payable to bearer be declared on as indorsed, the indorsement must be proved; (e) but when the declaration states that the indorsement was after the making of the bill, and it ap peared in evidence to have been before, (f) or that it was before the bill was due, and it appears in evidence to have been made afterwards this is not a material variance. (g) It is not neces sary to allege, as part of the plaintiff's title, that the bill, &c. was delivered to him, as the allegation, that the bill was payable to the payee, or "that an indorsement was made," includes it; (h) nor is it necessary to aver notice of an indorsement. (i)

*It is also necessary to shew the defendant's breach of contract. If a bill be accepted payable when, or if a certain event shall take place, it must be shown that such event has occurred. (k) And if the bill be payable at, or after usances, their duration

(a) Critchlow v. Parry, 2 Campb. 182,

(b) Bosanquet v. Anderson, 6 Esp. Rep. 43.

(c) Hawkins v. Gardner, 12 Mod. 213.—Bayl. 183, n. a.

(d) Levy v. Wilson, 5 Esp. Rep. 180. ante, 458.

(e) Waynam v. Bend, Campb, Ni. Pri. 175; and see Manning's Index, 75. (f) Smith v. Mingay, 1 M. and S. 92.

(g) Young v. Wright, 1 Campb. 139.

(h) Churchill v. Gardner, 7 T. R. 596--Smith v. M'Clure, 5 East. 477. ante, 122.-Bayl. 180.

(i) Reynolds v. Davies, 1 Bos. & Pul, 624.-Bayl. 184.

(*) Ante, 236.

necessary

ants breach

must be averred. (a) If a note be payable on or after demand, 4thly. The it is advisable at least in one count in an action against the ma- averments, ker to allege a demand. (b) In general, in an action against the and defend. acceptor of a bill or maker of note, who is primarily liable, it is of contract. not necessary to aver or prove any presentment for payment, the action itself being deemed a sufficient demand, and the common breach at the end of the money counts sufficing; (c) and we have seen, that unless in the body of the bill or note, it be made payable at a particular place, no averment of a presentment there is necessary, although the drawee accept the bill payable at a banker's or the maker, by the memorandum at the foot of the note, specify that it shall be there payable, the stipulations being considered as no part of the contract of the parties necessary to be observed by the holder. (d) As however, there has been some difference in opinion upon this point, it seems still advisable in one count to state the special acceptance or memorandum at the foot of the note and to aver a presentment accordingly, and in another count to describe the bill as accepted generally, and to omit the averment of presentment. (e) In all cases where by the terms of the orginal contract, as when in the body of the bill or note, it is made payable at a particular place, a presentment there and refusal, or some discharge dispensing with the presentment, must be averred in an action *against the acceptor of the one and the maker of the other, and an allegation that the makers of a note, payable in the body of it at a particular house, became insolvent, and ceased, and wholly declined and refused then and thenceforth to pay at the place specified, any of their notes, does not shew a sufficient discharge or excuse for the want of a presentment of the particular note declared on. (f)

It is sufficient, however, in these cases, if the declaration allege the presentment to have been made to the persons at whose house the bill was made payable, "according to the tenor and effect of the bill, and the acceptance thereof." (g) But if a bill

(a) Bayl. 184, 5,

(b) See post, as to statute of limitation; but see Cro. Eliz. 548.--Rumball v. Ball, 10 Mod. 38.-Bayl. 187.

(e) Frampton v. Coulson, i Wils. 33.

(d) Ante 321 to 332-Bayl. 185.

(e) Ante, 331.-Bayl. 185.

(f) Bowes v. Howe, 5 Taunt. 30.—Ante, 322.

(8) Huffan v. Ellis, 3 Taunt. 415.-Ante, 327, n. 1.-Bayl. 187.

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