1st. The statement" at Venice in Italy, to wit, at London, &c." of the bill, &c. But where a promissory note, dated and made at Paris, was declared upon in an action by the payee against the maker, as made in London, it was decided to be no variance, because the contract evidenced by a promissory note is transitory, and the place where it purports to made immaterial; and it is laid down that inland bills and notes, though they may bear date at a particular place, may be alledged to have been made any where in England or Wales'. The instrument itself must be stated in terms, or according to the legal effect. If it be in foreign language it may nevertheless be stated as if it were in English, without noticing the foreign language. If the bill be payable at usances, the length of them should be averred thus "at two usances, that is to say, at two months after the date thereof," and the omission will be fatal on demurrer. And if by the body of the bill or note, it be made payable at a particular place, that qualification of the contract must be stated. A bill or note payable to the order of the plaintiff, may be stated in the declaration to be payable to him, and there is no occasion to insert any averment that he made no order 7. And a bill of exchange expressed on the face of it, to be for "value delivered in leather," may be stated in pleading to have been for value received in leather'. And it has been considered that when a bill of exchange is in this form "pay to F. G. B. or order £315. value received," and was subscribed by the drawer, it Bayl. 175.-Salk. 669.-Cowp. 177, 8.-6 Mod. 228.-Com. Dig. Action, N. 7. 2 Per Lord Ellenborough, in Ilouriet v. Morris, 3 Campb. 304. 3 Bayl. 175. 4 Attorney-General v. Valabreque, Wightw. 9. 5 Barclay v. Campbell, Salk. 131.-Smart v. Dean, 3 Keb. 645.Bayl. 184, 5. Ante, 321. 7 Frederick v. Cotton, 2 Show. 8.-Fisher v. Pomfet, Carth. 403.— Bayl. 189. 190. Jones v. Mars, 2 Campb. 307, in notes.-White v. Ledwick, ante, 87. may be alleged in pleading to be a bill of exchange 1st.The statement for value received by the drawer from the payee', and it should seem that it is not necessary to insert in the declaration that part of the bill which relates to the consideration 2. It is not advisable to state more of the bill or note declared on than is necessary to enable the plaintiff to recover, and the formal description of the direction to the drawee, should in general be omitted, at least in one count, for fear of a variance. If the bill or note were informal, it may be stated in its terms with an innuendo of its meaning, which seems the safest course 4. If the rules of law prevent the instrument declared on from operating according to the words of it, it may ut res magis valeat quam pereat be stated to have been made in such a manner as the law will give effect to it, though there may be a verbal variation between that statement and the instrument itself". Therefore in the case before-mentioned of a note by which a man promised never to pay a sum of money, it was holden that it might be declared on as a promise to pay; and bills payable to the order of fictitious persons, may be declared on as payable to bearer, against every party aware of the fact 7. fendant became &c. It is incumbent on the plaintiff, in every declaration 2dly. How the de. founded on a breach of contract, to shew the contract party to the bill, for the non-performance of which the action is brought, and consequently it is necessary to state in a declaration on a bill, how the defendant became party to it, whether by drawing, accepting, or transferring it, as that he "made," "accepted," accepted," "indorsed," or "de Grant v. Da Costa, 3 M. & S. 351. ante, 88, note 4. 2 Id. ibid. per Lord Ellenborough. 3 Bristow . Wright, Dougl. 667.-Dundas v. Lord Weymouth, Cowp. 665.-Price v. Fletcher, Cowp. 727. Waugh v. Russel, 1 Marsh. 215. Rolleston v. Mageston, 4 T. R. 166. Ante, 83, 4, 5. fendant became party to the bill, &c. edly. How the delivered" it; which allegations will be sufficient although the defendant did not in fact do either of these acts himself, provided he authorized the doing of them; though, indeed, it is not unfrequent when the fact is so, to state that those acts were done by the procuration of the agent who was employed: and though it is usual to allege a promise, it has been decided that this is unnecessary, as the law implies a promise where there is a legal liability. In an action against the acceptor of a bill and the maker of a note, at the suit of the payee or indorsce, the defendant's promise is to be stated to have been "according to the tenor and effect of the bill or note;" but in an action against a drawer or indorser of a bill, or the indorser of a note, after stating the default of the party primarily liable, the liability and the promise of the defendant are stated to have been to pay on request, that being the legal result. The words "his own proper hand, being thereunto subscribed," subscribed should be omitted. In an action by the indorsee against the acceptor of a bill of exchange, the declaration stated, that the payee indorsed it, his own proper hand being thereunto subscribed; and it appeared that the payce's name, upon the back of the bill, was written under his authority by his wife; and it was held that the defendant having, after notice of non-payment, promised to pay, was not at liberty to object that the indorsement was not in the handwriting of the payee himself; but had it not been for such promise, the variance would have been fatal*. And in an action against the drawers of a bill of exchange, the declaration stated, that the defendants Collis v. Emett, 1 Hen. Bla. 313.-Brucker v. Fromount, 6 T. R. 659.-Heys Heseltine, 2 Campb. 604. Starkie v. Cheesman, Carth. 510.-Salk. 128. S. C —Anonymous, Hardw, 486.-Sed vide Bac. Ab. tit. Assumpsit, F. and Morris v. Norfolk, 1 Taunt. 217. 3 Helmsley v. Loader, 2 Campb. 450.-Payl, P. & A. App. no. 2.— Bayl. 182, 3. Levy v. Wilson, 5 Esp. 180.-Payl, P. & A. 275, 6.-Bayl. 185. fendant became &c. made the bill, "their own proper hands being thereto 2dly. How the des subscribed;" and in fact their firm of A. and Co. was party to the bill subscribed to the bill, and Lord Ellenborough said, "Had it been their own proper hand,' I should have clearly held it sufficient. As it stands, I entertain "some doubt; but I will not nonsuit '." 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 ; but it seems that a variance is not material. 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, this doctrine has been disputed by high authority. 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. 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 or advisable in an action against the drawer or indorser of a bill, to state that the drawee accepted it, but if it be stated, it must, 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 7. Jones & al. v. Mars & al. 2 Campb. 305. 2 Bayl. 181. 3 Forman v. Jacob, 1 Stark. 46; and see Young. Wright, 1 Campb. 139.-Lord Raym. 364.-12 Mod. 212. 4 Jackson v. Piggott, Lord Raym. 364.-12 Mod. 212. edly. How the defendant became &c. If the engagement of either of the parties were conparty to the bill, ditional, 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. 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 Adly. How the plaintiff became a thereto. Thirdly, A plaintiff, who sues upon a bill, check, or party and entitled 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 3. 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. In general, whatever forms a constituent part of the plaintiff's title, must be set out correctly. 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. 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?; and a note payable to a married woman, and indorsed by her husband, may be stated to have been payable to the husband. An indorsee may, it is said, declare against his immediate indorser, as on a bill of exchange made by the defendant, di Langston v. Corney, 4 Campb. 176.-Swan v. Cox, 1 Marsh. 176. ante, 236. Ante, 321 to 332. Bishop v. Hayward, 4 T. R. 471. Bayl. 180. Per Lord Kenyon, in Gwinnet v, Phillip, 3 T. R. 645.-Gibson v. Minet, 1 Hen. Bla. 605, 6. 6 Ante, 88, 4. 7 Frederick v. Cotton, 2 Show. 8.-Smith v. M'Clure, 5 East. 476. 2 Smith's Rep. 43. S. C. Barlow. Bishop, 1 East. 432.-3 Esp. Rep. 266. S. C.-Anker stein v. Clarke, 4 T. R. 616. |