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counts on the con

sideration, and of

the common counts.

dence as an instrument carrying with it the privileges Sect. 2. Of the it is otherwise entitled to in respect of its bearing internal evidence of a consideration; but it is merely used as a piece of paper or writing, to found an inference only, in support of the money counts, which inference may be rebutted and destroyed by contradictory evidence on the part of the defendant; in which case the jury must draw, from the whole of the evidence, the conclusion of fact, that so much money was lent, paid, or had and received, or that an account was stated'.

Story v. Atkins, 2 Stra. 725.-Gibson v. Minet, 1 Hep. Bla. 602.

CHAPTER III.

Sect. 1. Of staying proceedings on payment of the debt and costs.

"

OF PAYMENT OF DEBT AND COSTS-JUDGMENT BY
DEFAULT-AND THE PLEAS AND DEFENCE IN AN
ACTION OF ASSUMPSIT ON A BILL, &c.

WHEN the plaintiff has declared, the defendant, if he have any defence, pleads; if he have no defence, he settles the action by paying the debt and costs; or he lets judgment go by default; or obtains time by dilatory pleading. If the defendant wish to see a copy of the bill or note, the practice is stated to be, for a judge on summons, without an affidavit, to make an order for the delivery of a copy to the defendant or his attorney, and that all proceedings be in the mean time stayed'. But the court or a judge will not grant leave to inspect a bill, in order to ascertain whether it was duly stamped, or has been altered, as those are considered as unjust defences 3.

If the defendant be advised to settle the action in the first instance, without incurring further expense, he may move the court, in which the action is brought, for a rule, calling on the plaintiff to shew cause why, on payment of the debt and costs, all further proceedings should not be stayed: or he may apply to a judge for a summons to the same effect. But where an indorsement was made upon a note by the payee, that if the interest was paid on stipulated days, during his life, the note should be given up; default having been made in payment of the interest, the Court of Common Pleas refused to stay the proceedings on payment of it, and costs'.

Tidd. 6th edit. 618.

And see Odams v. Duke of Grafton, Bunb. 243.
Steel v. Bradfield, 4 Taunt. 227.-2 Bla. Rep. 958.

ing, &c.

If the holder of a bill bring separate actions against Sect. 1. Of staythe acceptor, the drawer, and indorsers, at the same time, the court will stay the proceedings in the action against the drawer, or any one of the indorsers, upon payment of the amount of the bill, and the costs of that particular action; but the action against the acceptor will only be stayed on the terms of his paying the costs in all the actions, he being the original defaulter; and therefore, where several actions have been brought, it may be the least expensive course for the acceptor to suffer judgment by default, in which case he can only be charged with the costs of the particular action against himself.

When the defendant has no defence, either on the Sect. 2. Of judgment by default, merits or on the pleadings, and is not able to pay the &c. debt and costs in the first instance, he usually obtains time by pleading, or suffers judgment to go by default, whereupon the plaintiff must, in an action of assumpsit, before he will be entitled to final judgment and execution, ascertain the amount of the debt, which is done either by referring it to the master to compute the principal, interest, and costs, or by suing out a writ of enquiry. By suffering judgment by default, the defendant is precluded from making any objection to the validity of the instrument; and from availing himself of its loss as a ground of defence '.

Formerly, a writ of enquiry was the only legal mode of ascertaining what was due in the case of a judgment by default in an action on a bill or note; but it has long been the practice of the Court of King's Bench and Common Pleas, for the plaintiff, instead of executing a writ of enquiry, to apply to the court in term time, or to a judge in vacation, on an affidavit

Smith v. Woodcock, 4 T. R. 691.-Windham v. Wither, Stra. 515. Golding v. Grace, 2 Bla. Rep. 749.-Tidd. 6th edit. 562.

Shepherd v. Charter, 4 T. R. 275.

1 Brown v. Messiter, 3 M. & S. 281.-Ante, 199.

Sect. 2. Of judg- of the nature of the action, for a rule or summons to ment by default, &c. shew cause, why it should not be referred to the master or prothonotaries, in the Common Pleas, to see what is due for principal and interest, and why final judgment should not be signed for that sum, without executing a writ of inquiry, upon which the court or judge will make the rule absolute, on an affidavit of service, unless good cause be shewn to the contrary. And though formerly the Court of Exchequer did not adopt this practice, yet now it is otherwise.

In the King's Bench, where interlocutory judgment was signed, and the plaintiff died on a subsequent day in the term, the court granted a rule to compute principal and interest on the bill on which the action was brought; and in another case, they referred it to the master, to see what was due for principal and interest upon a bill of exchange, upon producing a copy of the bill verified by affidavit of the plaintiff's attorney, the original having been stolen out of his pocket, and no tidings of it obtained.

This practice, however, is confined to cases where the declaration states the bill or note, and does not apply to cases where the instrument is not specially declared upon. And it is still necessary to sue out a writ of inquiry, when the bill is payable in foreign money, the value of which, it is said, can only be properly ascertained by a jury. And in a recent case, the court would not direct the master to allow

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Shepherd v. Charter, 4 T. R. 275.-Rashleigh v. Salmon, 1 Hen. Bla. 252.-Andrews v. Blake, id. 529.-Longman v. Fenn, id. 541. In Chilton v. Harborn, 1 Anstr. Rep. 249. it is said, that the first case where the court granted this rule, was that of Rashleigh v. Salmon, 29 Geo. 3. 1 Hen. Bla. 252.-Thellusson v. Fletcher, Doug. 315, 6.

2 Chilton v. Harborn, 1 Anstr. 249.

3 Berger v. Green, 1 M. & S. 229.

Brown v. Messiter, 3 M. & S. 281. Ante, 199.

Osborne v. Node, 8 T. R. 648.

• Messing. Lord Massarene, 4 T. R. 493.-Maunsel v. Lord Massarene, 5 T. R. 87.-Nelson v. Sheridan, 8 T. R. 395. Cro. Eliz. 536. Cro. Jac. 617. Tidd. 6th edit. 598.

ment by default,

re-exchange, in an action upon a bill drawn in Scot- Sect. 2. Of judg land upon and accepted by the defendant in England'; &c. and the court refused a reference to the master, in an action of debt on a judgment recovered on a bill of exchange. Where, however, there was a demurrer to one count on a bill of exchange and judgment for the plaintiff, and a plea to other counts on which issue was joined, the Court of King's Bench referred it to the master, to see what was due to the plaintiff on the former'. But in such case a nolle prosequi must be entered as to the other counts, which may be done any time before final judgment *.

The plaintiff may, in the King's Bench, obtain a rule for referring a bill of exchange to the master, on the day on which interlocutory judgment was signed for want of a pleas; but where it is signed upon demurrer, as a day is given to the parties upon the record, it might be thought incongruous to deprive either of them of the whole of the day, after he is once possessed of it; and it has therefore been the practice not to move for such rule until the following day. In the King's Bench, the rule nisi and rule absolute, must both be served; but there need not be any notice of taxing; if the defendant wish it, he must at his peril take care to get a rule to be present". In the Common Pleas, notice must be given to the defendant of the prothonotary's appointment to compute principal and interest on the bill, in order that the defendant may have an opportunity of bringing forward any facts which may have occurred to reduce the sum which the plaintiff seeks to recover3.

Napier v. Shneider, 12 East. 420.-Goldsmith v. Taite, 2 Bos. & Pul. 55.

. Nelson v. Sheridan, 8 T. R. 395.

3 Dusserry v. Johnson, 7 T. R. 473.

* Heald v. Johnson, 2 Smith's Rep. 46, 7. 1 Strange, 532. Tidd, 6th edit. 599.

5 Pocock v. Carpenter, 3 M. & S. 109.

Id ibid. 3 Smith's Rep. 179. Tidd. 6th edit. 597.

Sellin v. Dufton, Hil. 1813.-Farmer v. Wood, East. 1816.-MS. of Mr. Le Blanc.

* Branning v. Patterson, 4 Taunt. 487. Tidd. 6th edit. 597.

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