Bills of Exchange. [&c.] at [&c.] made his bill of exchange in writing, and directed the same to the defendant; and thereby required the defendant to pay to one E. F., or order, dollars, two months after the date [or, "after sight,"] thereof, which period has now elapsed; and the defendant then and there accepted the said bill, and promised the plaintiff to pay the said bill, according to the tenor and effect thereof, and of the said acceptance thereof, yet the defendant did not pay the amount thereof, although the said bill was then and there presented to him when it became duc; (k) and thereupon, the same was then and there returned to the plaintiff [of all which the defendant then and there had notice. (1)] [Add common counts, ante p. 216, and conclude as directed in preceding form.] 3. Payee, not being Drawer, against Acceptor. Commencement, ante p. 181 to 188.] For that, whereas, one E. F., on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to the plaintiff dollars, two months after the date [or, "after sight"] thereof, which period has now elapsed, and then and there delivered (m) the said bill to the plaintiff'; and the defendant then and there accepted the said bill, and promised the plaintiff to pay the same according to the tenor and effect of the said bill, and the said acceptance thereof. [Add common counts, ante, p. 216, and conclude as directed in preceding form No. 1.] 4. Indorsee against Acceptor. Commencement, ante p. 181 to 188.] For that, whereas, one E. F. on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to the said E. F., [or "G. H."] or order, — dollars, two months after the date, [or, "after sight"] thereof, which period has now elapsed; and the defendant then and there accepted the said bill, and the said E. F., [or "G. H."] then and there indorsed the same to L. M., who then and there indorsed the same to N. O., (n) who (k) This averment of presentment to the defendant, he being acceptor, may, perhaps, not be strictly necessary; 1 Chit. Prec. 76, n. (t); 2 H. Bla. 509; 11 Whea. 171; 4 Johns. 183; and should not be stated unless it can be proved. It is certainly necessary to show the defendant did not pay the bill, and that it was returned to the plaintiff'; as he has no title except by virtue of those facts. (1) The statement that the defendant (the ac ceptor) had notice of the premises, is not, it seems, essential; 1 Chit. Prec. 76, note (u). (m) The statement of a delivery of a bill or note to the holder is not necessary; 7 T. R. 596; 5 East 477; 2 Cowen 536. (n) It is not essential to state all the indorsements; and such as are not stated may be struck out at the trial. But of course the payee's indorsement must be shown; and those parties whose indorsements are struck out, will be discharged Bills of Exchange. then and there indorsed (o) the same to the plaintiff; and the defendant then and there promised the plaintiff to pay the amount of the said bill, according to the tenor and effect thereof, and of the said acceptance and indorsements. [Add common counts, ante p. 216, and conclude as directed ante p. 239. Form 1.] 5. Payee against Drawer-Default Acceptance. Commencement ante, p. 181 to 188.] For that, whereas, the defendant, on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one E. F., and thereby required the said E. F. to pay to the plaintiff, or order, dollars, two months after the date thereof, which period has now elapsed; and then and there delivered the said bill to the plaintiff; and the same was then and there presented to the said E. F. for acceptance, and the said E. F. then and there refused to accept the same; of all which the defendant then and there had due notice. [Add common counts, ante p. 216. But as the above form does not show the defendant's promise or nonpayment, the promise and conclusion of the common counts must be general, viz. that the defendant promised to pay "the said several moneys respectively," and hath not paid "any of the said moneys," &c. Sce Form, ante, p. 217.] from liability. It is, in general, not necessary, in In Bayley on Bills, 264, is the form of a declaration on a foreign bill, by the indorsee against the payee, and the bill is set forth as “made by certain persons using the style and firm of Gaunt & Co.," and throughout the drawers are mentioned as "the said persons, so using the style and firm of Gaunt & Co." See also the form of the declaration in the case of Case against Heffner, post note to form 30. The same principle is decided in Cochran against Scott, where the plaintiff declared as the indorsee of a promissory note, payable to Lawrence Power and Co., alledging an indorsement by Lawrence Power and Company, without setting forth the names of the persons composing the firm; and the defendant's special demurrer for this cause, to the declaration, was overruled. 3 Wend. 229. (0) The omission to state the plaintiff's title, by showing the indorsement to him, would be fatal, even after verdict; see 4 T. R. 471. How to declare if the plaintiff be indorsee for part only of the bill; 12 Mod. 213; or the indorsement be by a married woman; 27 Eng. C. L. Rep. 447. Bills of Exchange. 6. Indorsee against Drawer-Default Acceptance. Commencement, ante, p. 181 to 188.] For that, whereas, the defendant on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one E. F., and thereby required the said E. F. to pay to G. H., or order, dollars, two months after the date thereof, which period has now elapsed; and the said G. H. then and there indorsed the said bill to the plaintiff, [or "to one L. M., who then and there indorsed the same to the plaintiff;"] and the same was then and there presented (p) to the said E. F. for acceptance, and the said E. F. then and there refused to accept the same; of all which the defendant then and there had due notice. (q) [Add common counts, and conclude as directed in last Form, No. 5.] 7. Indorsee against Indorser-Default Acceptance. Commencement, ante, p. 181 to 188.] For that, whereas, one E. F., on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one G. H., and thereby required the said G. H. to pay to the said E. F., or order, dollars, two months after the date thereof, which period has now elapsed; and the said E. F., then and there indorsed the said bill to the defendant, [who then and there indorsed the same to one I. K.] who then and there indorsed and delivered the same to the plaintiff; and the same was then and there presented to the said G. H., for acceptance, and the said G. H. then and there refused to accept the same; of all which the defendant then and there had due notice. [Add common counts, ante p. 216, and conclude as ante p. 241, Form No. 5.] 8. Indorsee against Drawer - Default Payment by Drawce. Commencement, ante, p. 181 to 188.] For that, whereas, the defendant on Eng. C. L. Rep. 242. (p) An averment of the presentment, or the Am. ed. 229, n. (f), 234 n. (g), 236, 237; 6 Mass. statement of a valid excuse for not presenting the 386; 3 Met. 434; 2 N. Hamp. 340; 12 Whea. 183. bill. (where no presentment has taken place) is, Where there has been an excusable delay in preunder the English law, essential against the draw-senting the bill, the above form may suffice. 15 er and indorsers, or the declaration will be bad, it seems, after verdict; see Chit. jun. B. 47; 14 Eng. C. L. Rep. 85. In some of the American cases it has been held that the averments of demand and notice on a bill or note, were sufficiently supported by evidence of any thing which rendered a demand or notice unnecessary. 3 Cowen, 252; Anth. N. P. 5; 2 Caine's Rep. 121; 2 Conn. 478. In an action against the indorser of a note, proof of waiver of notice will support the allegation of actual notice. 5 Pick. 436; see 2 Stark. Ev. 7 (q) The omission of the averment of notice, or of an excuse for not giving it, will be fatal even after verdict. 7 East, 231. If no notice has been given, it is safest to state an excuse, (see preceding note,) instead of the above allegation -but that such allegation will suffice in cases where a notice has been given, though the time of giving it was delayed in consequence of the defendant's residence not being known at the time, &c., See 15 Eng. C. L. Rep. 242. Bills of Exchange. [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one G. H., and thereby required the said G. H. to pay to the defendant, or order, dollars, two months after the date thereof, (r) which period has now elapsed; and the defendant then and there indorsed the said bill to one K. L., who then and there indorsed the same to M. N., who then and there indorsed the same to the plaintiff; and the said G. H. did not pay (s) the said bill, although the same was there presented to him (1) on the day when it became due; of all which the defendant then and there had due notice. [Add common counts, ante, p. 216, and conclude as directed ante, p. 241. Form No. 5.] 9. Indorsee against Indorser — Default Payment by Drawee. Commencement, ante, p. 181 to 188. For that, whereas, one E. F., on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one G. H., and thereby required the said G. H. to pay to the said E. F., or order, — dollars, two months after the date thereof,(u) which period has now elapsed; and the said E. F. then and there indorsed the said bill to the defendant, who then and there indorsed the same to [one J. K., who then and there indorsed and delivered the same to] the plaintiff; and the said G. H. did not pay the said bill, although the same was there presented to him(v) on the day when it became due; of all which the defendant then and there had due notice. [Add common counts, ante, p. 216, and conclude as ante, p. 241, Form No. 5.] 10. Holder against Drawer and Indorser. (w) When the action is brought by a bank, commence as ante, p. 216, to the dagger and then proceed thus:] in the sum of dollars, for money then and there lent and advanced by the said plaintiffs to the said defendants at their request, and the said defendants afterwards, on the day and year aforesaid, at said county, in consideration of the premises, promised the said plaintiff's to (r) If payable after sight, see Form No. 11. (s) The acceptance by G. H. need not be averred, though he has accepted the bill. 1 Chit. Prec. 78, n. (1) Although the bill be accepted payable at a particular place, this averment suffices. Id. Ib., see note (i) supra. (u) If payable after sight, see next form. (r) A demand upon one of two joint and several promissors is sufficient to charge the indorser; 10 Ohio Rep. 5; 13 Mass. 298; 8 Cowen, 253. () For the provisions of the statute authorizing a joint action against all the "original makers and indorsers" of a bill of exchange, see post, p. 62. And for like provisions when a bank is the plaintiff, see ante p. 61. A bank of a sister State suing here, may sue and declare under the provisions of the last mentioned statute. 12 Ohio Rep. 132. The damages (Stat. 589) given upon bills of exchange drawn on persons out of the State may be recovered under this statutory mode of declaring, but proof of protest, &c., must be made as in other cases. 12 Ohio Rep. 132; see note () infra. Bills of Exchange. pay them the said money on request. Yet the defendants have disregarded their said promise, and have not, nor hath either of them, paid said money, nor any part thereof: to the damage, [&c.] When the action is brought by an individual, commence as ante, p. 216, to the dagger, and then proceed thus:] in the sum of dollars, for money then and there had and received by the defendants, for the use of the plaintiffs. And the said defendants afterwards, on the day and year aforesaid, at said county, in consideration of the premises promised, [&c., proceeding as in above form, with promise and breach, &c.] 11. Indorsee against Drawer or Indorser, on Bill payable after sight. Commencement, ante, p. 181 to 188.] For that, whereas, the defendant, [or "one O. P."] on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one E. F., and thereby required the said E. F. to pay to him, the said defendant, [or "the said O. P."] or order dollars, [two months] after sight thereof; and the said E. F. then and there, [or "afterwards, to wit, on the day of —, in the year aforesaid," at said county,] saw and accepted the same, and the said period has now elapsed; and the defendant, [or "O. P."] then and there indorsed the said bill to one G. H., [or "to the defendant,"] who then and there indorsed the same to one J. K., who then and there indorsed the same to the plaintiff; and the said E. F. did not pay the said bill, although the same was there presented to him, on the day when it became due; of all which the defendant then and there had due notice. [Add common counts, ante, p. 216, and conclude as directed, ante, p. 241, Form No. 5.] 12. Indorsee against Acceptor, on Bill payable at a particular place, "and not elsewhere." (w) Commencement, ante, p. 181 to 188.] For that, whereas, one E. F., on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to (w) The above form is used in England under an act of parliament. It may be applicable here when the express terms mentioned at the head of this form, or terms of like import, are used by the acceptor, in accepting a bill. But, in general, in this State, in order to render the acceptor or maker of a bill or note payable at a particular place and time, liable thereon, it is not necessary to alledge or prove a presentment or demand at the place; 8 Cowen, 271; 1 Ohio Rep. 483; 3 Wend. 11; 1 Yerg. 502; 3 Fairf. 19, 340; 2 Pet. 543; 17 Mass. 390; 17 Johns. 248; 4 Conn. 446; Contra, 6 Eng. C. L. Rep. 53, 63; 15 Pick. 212; but if a demand be alledged, it must, it seems, be proved. 1Ohio Rep. 483; but see Chit on Bills, & ed. 640, n. (b). And if in such case the defendant pleads in bar that he was, at the day and place appointed, ready with his money to discharge his promise, but the promisee was not there to receive it, and that the money has ever since remained at the place, for |