APPENDIX.

On a bill of exchange, payee

against acceptor.

Indorsee against acceptor.

Payee against drawer.

Indorsee against drawer.

Indorsee against indorser.

The like where the bill has been refused accept

ance.

On a bill of exchange drawn by one E. F. upon, and accepted by the said C. D. and for the payment of the sum of £50 to this deponent, at a certain day now past.

As indorsee of a bill of exchange drawn by one E. F. upon and accepted by the said C. D. and for the payment to the said E. F. or his order, of the sum of £50, at a certain day now past, and by him the said E. F. indorsed to this deponent.

On a bill of exchange drawn by the said C. D. upon one E. F. and for the payment of the sum of £50 to this depouent at a certain day now past.

As indorsee of a bill of exchange drawn by the said C. D. on one E. F. and for the payment of £50 to the order of the said C. D. at a certain day now past, and by him the said C. D. indorsed to this deponent.

As indorsee of a bill of exchange drawn by one E. F. on G.H. and for the payment of the sum of £50 to one I. K. or his order, at a certain day now past, and by the said I. K. indorsed to the said C. D. and by the said C. D. indorsed to this deponent, and which said bill of exchange hath been refused payment.

As indorsee of a bill of exchange drawn by the said C. D. on one E. F. payable to the order of the said C. D. and by him the said C. D. indorsed to this deponent, and which said bill of exchange hath been refused acceptance by the said E. F.

SECT. II.

DECLARATIONS ON PROMISSORY NOTES'.

1. By payee against the maker,

Law and Markham.

Trinity Term, 58th George the Third.

to wit. A. B. complains of C. D. being in the custody of the Marshal of the Marshalsea of our Lord the now King, before the King himself, of a plea of trespass on the case upon

'Only a few of the most common forms are here given: for other precedents and notes, see Chitty on Pleading, 3 vol. 1 to 27. and as to the mode of declaring in general, ante, 449 to 471.

promises for that whereas the said C. D.', heretofore, to wit, on APPENDIX...

the first day of January, in the year of our Lord 18112, to wit, in London, in the parish of St. Mary le Bow, in the ward of Cheap 3, made his certain promissory note in writing, his own proper handwriting being thereunto subscribed3, bearing date the day and year

A note made by an agent may be stated to have been made by the principal, because that is its legal operation.-12 Mod. 346.— 1 Hen. Bla. 313.—6 T. R. 659.— Bayl. 175. Ante, 458. Some times the declaration states, that the "said C. D. by one E. F. his agent in that behalf, on, &c. at, &c. made, &c.”—If several make a note jointly and severally, and one only be sued, the declaration may state either that the two jointly and severally made the note, &c. or, which is preferable, that the defendant made it without noticing the other party.-Ante, 433, 4.-Cowp. 832.-1 Esp. Rep. 135.—7 T. R. 596.-See post, 628, n. 5.

6

2 This should be the date of the note or bill, or if it have no date, the day it issued, or if that cannot be ascertained, the first day it can be proved to have existed.-10 Mod. 311.-Stra. 22.-2 Show. 422. Bayl. 174.-Ante, 454, 5. And where a second count stated, "that afterwards, to wit, on the day and year aforesaid," the defendant drew a certain other bill of exchange, payable two months after date, without mentioning any express date in either count, the last count was held sufficient by reference to the first.-3 B. & P. 173. If a note by mistake be dated contrary to the intention of the parties, the declaration should be as follows, on, &c. (the time intended) at, &c. made, &c. bearing date by mistake on, &c. but meant and intended by the said C. D. to be dated on the said, &c. aforesaid, and then and there delivered, &c. by which said note he the said C. D. then and there promised to pay two months after the date thereof (that is to say, after the said, &c. when the said note was so made, and meant and intended to be dated as aforesaid) to the said A. B. &c.'-Ante, 455. If the declaration state that defendant drew a bill, without alleging that it bore date on that day, the day in the declaration is not material, though not under a videlicet.-Coxon v. Lyon, York Lent Assizes, 1810. cor. Thompson, B. 2 Campb. 307. contra if it had alleged that the bill bore date on that day. Ib. 308. Ante, 454.

3 A note, bill, &c. it is said, should be stated to have been made at the place where it bears date, though the venue may be laid in another place for the purpose of trial.-Salk. 669.—Cowp. 177, 8. 6 Mod. 228.-Com. Dig. tit. Action, N. 7. in which case the declaration runs, 66 at, &c. (the place where the note was made) to wit, at, &c. (the venue)."-But in Bayl. 175. it is said, that inland bills, though they bear date at a particular place, may be alleged to have been made at any place in England or Wales.-And see 3 Campb. 304.-Ante, 456.

* 1 Hen. Bla. 313.-Bayl. 176.

This statement is unnecessary. Ld. Raym. 1376. 1484. 1542.— 3 Mod. 307.-Stra. 399. 512.-Bayl. 176.-and in Levy v. Wilson, Sittings after Mich. Term, 1804, the plaintiff was nonsuited, on an allegation that the payee indorsed the bill, his own proper hand being thereunto subscribed, it appearing in evidence that the indorsement was by his agent: and see Levy v. Wilson, 5 Esp. Rep. 180. Therefore these words should always be erased. Sed vide 2 Campb. 305. 450. Variance, when not material, 2 Campb. 307.-Bayl. 182, 3.-Ante, 458.

APPENDIX. aforesaid', and then and there delivered the said note to the said A. B., and thereby then and there promised to pay at, &c.', two months after the date thereof, to the said A. B. (by the name and addition of A. B. Esq.,) or order', the sum of £50 for value received". By means whereof, and by force of the statute in such case made and provided, the said C. D. then and there became liable to pay to the said A. B. the said sum of money in the said note specified, according to the tenor and effect of the said note. And being so liable, he the said C. D. in considera

'These words are not absolutely necessary, see 2 Show. 422.3 B. & P. 173. ante, n. 2. p. 627, for it shall be intended when the date is material, to have been dated on the day on which it was alleged to have been drawn. See 2 Campb. 307, 8.-Bayl. 177.-Ante, 454,5.

The averment of the delivery of the note to the payee is not necessary. 7 T. R. 596.-5 East. 476.-Bayl. 180.-Ante, 462.

3 If a note be payable, in the body of it, at a particular place, it is proper so to describe the contract.-2 Hen. Bla. 510.-Ante, 321. 456. In an action against an indurser, in which case a presentment is necessary, it seems proper, in all cases, to aver a presentment at the particular place. In an action against the maker of a note, or acceptor of a bill, an allegation of a presentment for payment is never stated, though when the payment is stipulated to be made at a particular place, an averment of presentment is then to be inserted, ante, 321. 456.—In an action by the indorsee of a bill or note, it is necessary to shew that the same authorized a transfer, but this is not necessary in an action at the suit of the payee.—Ante, 460.— 5 East. 476.-Infra, note 5.

The statement of the addition is unnecessary, and should in ge neral be omitted to avoid a variance. Ante, 457.

The note, &c. is to be stated according to its legal operation, Burr. 323. 2611.- Cowp. 832.- Blacks. 947.-Ante, 456. Thus where the payee is a fictitious person, the note, &c. may be stated to be payable to the person in whose favour the indorsement was made, or to bearer. 1 Hen. Bla. 313. 569.-3 T. R. 182. 481.-Bay!. 179. Ante, 457. And when a note has through mistake been made payable to a wrong person, it may be stated to have been payable to the proper one, 4 T. R. 470.-Bayl. 179. If the bill be "payable to the order of the payee," it may be so stated in the declaration, and there is no occasion for an averment that he made no order, 5 East. 476. and it may be stated to have been made payable to the plaintiff. Bayl. 179.-Ante, 456.-2 Show. 8.-Cowp. 76.-Bul. N. P. 273.-1 Wils. 190.- Bayl. 190. And where the note or bill has been returned to the payee, he may declare in his own right, without stating that fact, ante, 440. and a joint or several note, or a note importing in the body of it to be made by several persons, but signed only by one, may be stated as a several note. Burr. 323.Stra. 76-Bay). 103, 4.—Ante, 433, 4.—Bayl. 177, 8. Value delivered instead of value received, not material, 2 Campb.

306.

7 3 & 4 Ann. c. 9. this is usually stated, but it seems unnecessary, 4 T. R. 149.-Ante, 451. Ld. Raym. 88. 175. 1542. Carth. 83. 269, 270.-Lutw. 279.

This is the proper allegation against the parties primarily liable, as when the action is against the maker of a note, or the acceptor of

tion thereof, afterwards, to wit, on, &c. aforesaid, at, &c. afore- APPENDIX. said, undertook, and then and there faithfully promised' the said

A. B. to pay him the said sum of money in the said note specified, according to the tenor and effect of the said note.

N. B. The breach of the defendant's promise to pay, is in all cases of pills and notes included in the common breach at the end of the money counts, the day in which should always be after the bill or note is due. Add such counts as may be applicable to the particular

case.

maker of a note

payable by instalments for the default ».

whole sum on one

For that whereas the said C. D. heretofore, to wit, on, &c. 2. Payee against at, &c. made his certain promissory note in writing, bearing date the same day and year aforesaid, and then and there delivered the said note to the said A. B. by which said note he the said C. D. then and there promised to pay to the said A. B. (by the name and addition of Mr. A. B.), or order, the sum of £15 in manner following; that is to say, the sum of £5 upon the first day of August, then next, the further sum of £5 upon the first day of September, then next, and the further sum of £5 npon the first day of October, then next, and that in case default should be made in any of the said payments, then the whole of the said sum of £15 then remaining unpaid, should become due on demand. By means whereof, and by force of the statute in such case made and provided, the said C. D. then and there becaine liable to pay to the said A. B. the said sum of £15 in the said note specified, according to the tenor and effect of the said note. And being so liable he the said C. D. in consideration thereof afterwards, to wit, on the day and year first above-mentioned, at, &c. aforesaid, undertook and then and there faithfully promised the said A. B. pay him the said sum of £15 in the said note specified, according to the tenor and effect of the said note*. And the said A. B. in

to

a bill. But in an action against the drawer of a bill and the indorser of either a bill or note, as the prior part of the declaration shews a liability to pay immediately on the default of acceptance or payment by the party primarily liable, the declaration states the liability and promise to be to pay on request. 3 East. 481.-Post, 663, 4, notel.Bayl. 190.

The action being founded on a legal liability, no promise need be stated, but it is usually inserted, Carth. 509.-Salk. 128.-Hardr. 486.-1 Stra. 214.-Ante, 458.-Bac. Ab. tit. Assumpsit, F.Bayl. 190. 1.

As to these notes, and when the whole is recoverable, sec ante,

536, 7.

3 The notes in the preceding form are applicable to this prece

dent.

APPENDIX. fact saith', that after the making of the said note, to wit, on the 4th day of August next after the making of the said note, default was made in payment of the said first-mentioned sum of £5, to wit, at, &c. aforesaid, whereby and according to the tenor and effect of the said note, he the said C. D. then and there became and was liable to pay to the said A. B. the whole of the said sum of £15 in the said note specified, when he the said C. D. should be thereunto afterwards requested.

3. Ditto for one instalment. 2

For that whereas the said C. D. heretofore, to wit, on, &c. at, &c. made his certain promissory note in writing, bearing date, &c.

Same as in the first count as far as the asterisk, omitting the words in italics, and then proceed as follows:

And the said A. B. in fact saith, that after the making of the said note, to wit, on the 4th day of August next after the making of the said note, the said first-mentioned sum of £5, part of the said sum of £15 in the said note specified, became and was due and payable from the said C. D. to the said A. B., upon and by virtue of the said note, and which said last-mentioned sum of £5, he the said C. D. then and there ought to have paid to the said A. B., according to the tenor and effect of the said note, and of his said promise and undertaking, so by him made as aforesaid.

4. First indorsee against maker. 3

Indorsement.

For that whereas the said C. D., heretofore, to wit, on, &c. at, &c. made his certain promissory note in writing, bearing date the day and year aforesaid, and then and there delivered the said note to one E. F., and thereby then and there promised two months after the date thereof, to pay to the said E. F. (by the name and addition of Mr. E. F.) or order, the sum of £50 for value received. And the said E. F. to whom or to whose order the payment of the said sum of money, in the said promissory note specified, was thereby

'If all the instalments in the note be due by effluxion of time, no averment of default is necessary.

The notes in the first form are here in general applicable.

3 The notes in the first precedent are applicable to this. When the declaration is at the suit of an indorsee of an administrator, there is no occasion to state the letters of administration. Willes, 359. An indorsement by agent may be stated to have been made by the prin cipal, without noticing the agency, ante, 457, 8.