Sect, 2. Form and qualities of pro Though the rule Nisi calls upon the defendant to missory notes, &e. shew cause why the matter should not be referred to the master, yet it has been held in the Common Pleas, that no irregularity previous to the judgment can be shewn as cause against the reference'. And the same practice prevails in the King's Bench; and in a late case, where the defendant's counsel opposed a rule nisi, for referring to the master, on an affidavit, showing that the judgment was irregular, it having been signed without a plea having been demanded, the court determined that this was no ground for opposing the motion, and that a cross motion to set aside the judgment must be made, which was accordingly done, and the rule for referring to the master was enlarged, till the motion of the defendant had been discussed and determined'. When the plaintiff proceeds to ascertain the damages by executing a writ of inquiry, he need not adduce any evidence, but should produce the bill, which it will not be necessary to prove'; for where the action is founded on the instrument itself, letting judgment 'Pell v. Brown, 1 Bos. & Pul. 369. 2 Marshall v. Van Omeran, K. B. Trin. 1818. 3 Greene v. Hearne, 3 T. R. 301.—Bul. Ni. Pri. 278.—Thellusson v. Fletcher, Dougl. 316. n. 2.-Golding v. Grace, 2 Bla. Rep. 749. Bevis and Lindsell, Stra. 1149. On executing a writ of inquiry in an action on a note, the plaintiff did not produce the subscribing witness, but offered other evidence that it was the defendant's hand, and the court held that sufficient. For the note being set out in the declaration is admitted, and the only use of producing it is, to see whether any payment is indorsed upon it. Greene v. Hearne, 3 T. R. 301. Upon a rule nisi to set aside an inquisition against the acceptor of a bill of exchange, it was urged that the bill, though produced before the jury, was not proved, but the court held, that by suffering judgment, the defendant admitted the acceptance of the bill, and was liable to its amount; and Buller, J. said the only reason of producing the bill is to see whether any part of it is paid. Mills v. Lyne, B. R. Hill. 26 G. 3. Bayl. 227. note g. On a writ of inquiry in an action upon a note, the sheriff directed the jury to give nominal damages only, because the plaintiff could not prove the note. Lawrence insisted that the plaintiff was bound to produce the note (because a receipt of part might have been indorsed thereon), and to prove the defendant's signature, but per Buller, J. "If you had paid part you might have pleaded it, but you have let judgment go for the whole," and the court set aside the inquisition. &c. 477 go by default is an admission of the cause of action, Sect. 2. Of judg ment by default, and of the defendant's liability to the amount of the bill'; and the only reason why the production of the bill is required, is, that it may be seen whether or not any part of it has been paid: for the same reason, the defendant will not be suffered to give in evidence any matter in defeasance of the action 3. pleas and de The defences of which the defendant may avail Sect. 3. Of the himself in this action, are founded either on a mis- fence. statement in the declaration of the cause of action, or De on some defect in the right of action itself. Those of Those of the first description are also divisible into two heads, namely, those defences which deny that the instrument declared on was made, indorsed, or accepted, or that the defendant was party to it; and those which admit such facts, but allege that the contract, supposed to have been raised by them, was void or voidable, on account of the incapacity of the de 'Anonymous, 3 Wils. 155.-Shepherd v. Charter, 4 T. R. 275. 2 Per Buller, J. in Greene v. Hearne, 3 T. R. 301. 3 East India Company v. Glover, 1 Stra. 612.-Shepherd v. Charter, 4 T. R. 275. The King v. Dawson, 1 Wightw. 32. ante, 123. Sect. 3. Of the pleas and defence. fendant to contract, as in the case of infancy or coverture, or on account of the want of consideration, or the illegality of it, or on the ground of an improper presentment for acceptance, or payment, or neglect to give notice of the dishonour of the bill, or some laches of the holder, or the person from whom he attempts to derive an interest in the instrument; or, admitting there once existed a valid contract, insist that it was performed by payment or otherwise; or if unperformed, that there was some legal excuse for the non-performance of it, as a release or parol discharge before breach. But we have seen that the defendant cannot give in evidence, as a defence, a parol agreement to renew *. Defences of the second description, namely, those which admit that the plaintiff once had cause of action, but insist that it no longer exists, are either such as allege that the plaintiff is under an existing disability to sue, by his being an outlaw, alien enemy, bankrupt, &c.; or that the defendant is under a disability to be sued, either by his being an insolvent debtor, bankrupt, &c.; or that the action is discharged by an accord and satisfaction', arbitrament, release, (which we have seen, may, in the case of bills, be by parol,) former recovery for the same cause, tender, set-off, or the statute of limitations. The statute of limitations begins to operate only from the time when the bill, &c. is due, and not in general from the date; and therefore the plea in an action against an acceptor of a bill, or maker of a note, when payable after date, should be actio non accrevit, and not non-assumpsit infra sex annos 6. 2 Hoare v. Graham, 3 Campb. 57, ante, 61, 2. 3 What is not a satisfaction see Noxsis v. Aylett, 2 Campb. 329, 30. 4 Chievly v. Bond, 4 Mod. 105. Whittersheim v. the Countess Dowager of Carlisle, 1 Hen. Bla. 631.-Renew v. Axton, Carth. 3. As to the point when the statute of limitation begins to run on a note payable on demand, Topham . Braddick, 1 Taunt. 575, 6.-Sir William Jones, 194.-Godbolt, 437. 12 Mod. 444.-15 Ves. jun. 487. Josselyn v. Lacier, 10 Mod. 294. pleas and de Where a bill or note is payable a certain time after Sect. 3. Of the sight no debt accrues until it has been presented to fence. the drawee, therefore the statute of limitations is no bar to such a note unless it has been presented for payment six years before the action was commenced '. With respect to promissory notes payable on demand it has been held that the statute runs from the date of the note, and not from the time of the demand. An indorsement on a bill or note by the holder of the payment of interest within six years may be given in evidence to prevent the operation of the statute of limitations if it were bonâ fide made when the six years had not elapsed 3. An acknowledgement by one of several drawers of a joint and several promissory note will take the case out of the statute as against any one of the other drawers in a separate action on the note against him *. And in an action against A. on the joint and several promissory note of himself and B. to take the case out of the statute of limitations it is enough to give in evidence a letter written by A. to B. within six years, desiring him to settle the debt. But the acknowledgment by one partner to bind the other must, in such case, be clear and explicit, and therefore it is not sufficient in order to take a case out of the statute of limitations in an action on a promissory note to shew a payment by a joint maker of the note to the payee within six years, so as to throw it upon the defendant to shew that the payment was not made on account of the note ". Where the acceptor of a bill of exchange acknowledges his acceptance, and that he had been Holmes v. Harrison, 2 Taunt. 323. Christie v. Fonsick, C. P. London Sittings after M. T. 52 Geo. 3. Sir J. Mansfield. 2 Selwyn 4th ed. 131. 339.-Capp v. Lancaster, Cro. Eliz. 548.-Rumball v. Ball, 10 Mod. 38.-3 Salk. 227.—Ante, 321. Sed quære, see 14 East. 500.-3 Campb. 459.-1 Taunt. 575, 6.—Sir W. Jones, 194.-Godbolt, 437.—12 Mod. 444.-15 Ves. jun. 487. Searle v. Lord Barrington, 2 Stra. 820.-2 Ves. sen. 43. 54. Whitcomb v. Whiting, Doug. 652, 3. ✔ Halliday v. Ward, 3 Campb. 32. and see 11 East. 585.-1 Stark. Holme v. Green, 1 Stark. 488. liable, but said that he was not liable then because it was out of date, and that he would not pay it, and that it was not in his power to pay it, this was deemed sufficient to take the case out of the statute '. It has been held, that where one of two drawers of a joint and several promissory note having become a bankrupt, the payee receive a dividend under the commission on account of the note, this will prevent the other drawer from availing himself of the statute in an action brought against him for the remainder of the money due on the note, the dividend having been received within six years before the action brought'. But in a recent case where one of two joint drawers of a bill of exchange became bankrupt, and under his commission the indorsee prove a debt (beyond the amount of the bill) for goods sold, &c. and they accepted the bill as a security they then held for their debt, and afterwards received a dividend; it was held, that in an action by the indorsees of the bill against the solvent partner, the statute of limitations was a good defence, although the dividend had been paid by the assignees of the bankrupt partner within six years'. With respect to the mode of taking advantage of these defences, those which in effect deny that the bill, &c. was made, or that the defendant or plaintiff was party to it, such as those which are founded on some defect in the instrument, apparent on the face of it, or on the ground that the supposed drawing, acceptance, or indorsement, do not amount to such act, cannot be pleaded, and can only be taken advantage of, under the general issue of non-assumpsit to which they amount. But all defences which admit the existence of a contract, but allege that it was never binding, or that if it were, it was either performed, or |