directed to be made, after the making of the said promissory note, APPENDIX. and before the payment of the said sum of money therein specified, to wit, on, &c. aforesaid, at, &c. aforesaid, indorsed the said promissory note, his own proper hand-writing being to such indorsement subscribed, and thereby then and there ordered and appointed the said sum of money, in the said promissory note specified3, to be paid to the said A. B.4, and then and there delivered the said promissory note so indorsed as aforesaid, to the said A. B. Of which said indorsement so made on the said note as aforesaid, the said C. D. afterwards, to wit, on, &c. aforesaid, had notice. 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 thereof, and of the said indorsement so made thereon as aforesaid; and being so liable, he the said C. D., in consideration thereof, afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, 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, and of the said indorsement so made thereon as aforesaid.

If there be a date to the indorsement, this should be the precise day, but in no other case is it material. When the indorsement was made after the bill or note became due, it is more proper not to state that it was made "before the bill, &c. became due," but the declaration should be as above: a mistake, however, in this respect, is not material.-Young v. Wright, Campb. 139.-Bayl. 181, 182.

This allegation is not advisable, ante, 458.

3 On an indorsement for less than the full sum mentioned in the note or bill, the declaration should shew that the residue was paid, 12 Mod. 213.—Ld. Raym. 360.-Carth. 466.—Salk. 65.

+ Sometimes the words" or order" are here added, but the bill being once negotiable this is unnecessary. A full and blank indorsement are described in the same manner.

The statement of the delivery is not necessary, 7 T. R. 596.--Ante, 628, n. 2. If the plaintiff claim as a remote indorsec, every indorsement is usually set forth in one count, but where the first indorsement is in blank (i. e. merely with the indorser's name,) in order to avoid the necessity of proving all the indorsers hand-writing, it is prudent to add a count stating the plaintiff to be the immediate indorsee of the first indorser, ante, 461.-Peacock v. Rhodes, Doug. 633.—Kyd. 206; and where there are several indorsers of a bill between the payee and the defendant, the plaintiff may declare on an indorsement by the payee to the defendant, and by the defendant to the plaintiff, without stating the intermediate indorsements, 4 Esp. Rep. 210.

This also is unnecessary, 1 B. & P. 625.—Prac. Reg. 358.

APPENDIX.

5. Statement of a second and of subsequent indorsements.

6. Short state. ment of an indorsement.

(When the declaration is at the suit of a second or subsequent ndorsee, the statement of the second indorsement' is introduced at the asterisk in the last precedent, and runs as follows.) And the said G. H. (the first indorsee,) to whom or to whose order the payment of the said sum of money in the said promissory note specified, was by the said indorsement directed to be made after the making of the said promissory note, and before the payment of the said sum of money therein specified, to wit, on, &c. aforesaid, at, &c. aforesaid, indorsed the said promissory note, and thereby then and there ordered and appointed the said sum of money therein specified, to be paid to the said A. B., and then and there delivered the said promissory note so indorsed as aforesaid, to the said A. B. By means whereof, &c. (stating the defendant's liability and promise to pay as usual, at the suit of an indorsee.)

In order to save expense when there are several indorsements, and particularly when it may be expedient to add a second count on the same bill or note, the following concise statement of the indorsements may be adopted.

And the said E. F. then and there indorsed and delivered the said promissory note to the said G. H. And the said G. H. then and there indorsed and delivered the said promissory note to the said A. B.

7. Indorsee For that whereas one E. F. heretofore, to wit, on, &c. against indorser, the maker having at, &c. made his certain promissory note in writing, bearing date refused payment. the day and year aforesaid, and then and there delivered the said note to the said C. D., by which said note the said E. F. then and there promised two months after the date thereof, to pay to the said C. D. (by the name and addition of Mr. C. D.) or order, the sum of £50 for value received. And the said C. D. to whom or to whose order the payment of the said sum of money in the said note specified, was to be made after the making of the said note, and before the payment of the said sum therein specified, to wit, on, &c. aforesaid, at, &c. aforesaid, indorsed the said note, by which said indorsement, he the said C. D. then and there ordered and appointed the said sum of money in the said note specified to be paid to the said A. B. and then and there delivered the said

It is not necessary to shew, that the first indorsement was to the second indorser, or order. Willes, 562.-Comyns, 311, 12.

2

* The greater part of the notes in the preceding precedents are applicable to this.

note to the said A. B.' And the said A. B. in fact saith, that APPENDIX.

ment.

afterwards, when the said note became due and payable according Averment of preto the tenor and effect thereof, to wit, on, &c. at, &c. aforesaid, sentment for pay(the place where payable,) to wit, at, &c. aforesaid, (the venue,) the said note so indorsed as aforesaid, was duly presented and shewn to the said E. F.+ for payment thereof, and the said E. F. then and there had notice of the said indorsement so made thereon as aforesaid, was then and there requested to pay the said sum of money in the said note specified, according to the tenor and effect of the said note, and of the said indorsement so made thereon as aforesaid; but that the said E. F. did not nor would at the said time when the said note was so presented and shewn to him for payment thereof, as aforesaid, or at any time afterwards, pay the said sum of money therein specified, or any part thereof, but wholly neglected and refused so to do; of all which said several premises the said C. D. afterwards, to wit, on the day and year last aforesaid, at, &c. aforesaid, had notice 7. By means whereof

2

As to the statement of indorsements, see ante, 630, 1, 2. The third day of grace, 4 T. R. 148, unless it be a Sunday, Good Friday, or Christmas-day, in which case, the note or bill is due the preceding day. This day is material, Doug. 679, unless there be an express averment that the presentment was made when the bill became due as above, in which case a mistake in the day after the videlicit, would not be material, Bayley, 188. The better way may per. haps be merely to allege that afterwards, to wit, "on, &c. at, &c. the bill was duly presented for payment," omitting the words in italic, see Patience . Townley, 2 Smith's Rep. 224.

If there be any doubt as to the proof of a presentment on the day the note was duc, omit this word.

Though in an action against the maker of a note or acceptor of a bill, it is otherwise, yet in an action against the indorser a presentment for payment must be stated, or that the maker or acceptor could not be found, or some excuse for the neglect, or the omission will be fatal even after verdict, 2 Show. 1010.-Doug. 654. 680.-Bayl. 188.-2 Esp. Rep. 551. The allegations should correspond precisely with the facts and evidence; for where the declaration averred in the usual form, a presentment for acceptance or payment and refusal, the plaintiff cannot give in evidence that the drawee or maker could not be found. If the drawee or maker cannot be found, it is sufficient to aver generally that he was not found, without stating that inquiry was made after him. Carth. 509.-Bayl. 109. See the precedents, post, 642, 3, on Inland Bills, as to the form of the averments these cases.

6

Notice of the indorsement need not be averred, 1 B. & P. 625. A subsequent promise by the defendant to pay, is evidence of a presentment to the maker or drawce for payment, and no special count is necessary, 7 East. 231.

"This allegation or an averment, shewing that it may be dispensed with, is necessary, and the omission would be fatal after verdict. Rushton v. Aspinat, Doug. 654. 680. If it be doubtful whether the

APPENDIX.

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, when he the said C. D. should be thereunto afterwards requested. And being so liable, he the said C. D. in consideration thereof, afterwards, to wit, on the day and year last aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said A. B. to pay him the said sum of money in the said note specified, when he the said C. D. should be thereunto afterwards requested.

SECT. III.

DECLARATIONS ON CHECKS ON BANKERS.

8. By the payee

FOR that whereas the said C. D. heretofore, to wit, on 3, &c. at, of a check against &c. according to the usage and practice of merchants, made his

the drawer.

certain draft or order in writing for the payment of money, commonly called a check on a banker, bearing date the same day and year aforesaid, and then and there directed the said draft or order to certain persons by the names, style, and firm of Messrs. E. F. and G. H. and thereby then and there required the said Messrs. E. F. and G. H. to pay to the said A. B. (by the name and addition of Mr. A. B.) or bearer, £50, and then and there delivered the said draft or order to the said A. B. And the said A. B. avers, that after the making of the said (*) draft or order and before the payment of the said sum of money therein specified, to wit, on, &c. aforesaid, at, &c. aforesaid, the said draft or order was presented and shewn to the said Messrs. E. F. and G. H. for payment thereof, according to the said usage and practice of merchants, and the said Messrs. E. F. and G. H. were then and there requested to pay the said sum of money therein specified, according to the tenor and effect thereof; but that the said Messrs. E. F. and G. H. did not nor would at the said time when the said draft

giving due notice can be proved, it is expedient to add a count stating an excuse for the not giving notice, such as the want of effects, &c. in the hands of the maker; see the form, post, 642, 3. Inland Bills. Ante, 628, n. 8.-Bayl. 190.

2 Ante, 628, n. 8.

As to the date, see ante, 627, n. 2.

or order was so shewn and presented to them for payment thereof APPENDIX. as aforesaid, or at any time afterwards, pay the said sum of money therein specified, or any part thereof, but then and there wholly neglected and refused so to do, whereof the said C. D. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, had notice'. By means whereof he the said C. D. then and there became liable to pay to the said A. B. the said sum of money in the said draft or order specified, when he the said C. D. should be thereunto afterwards requested. And being so liable, he the said C. D. in consideration thereof afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said A. B. to pay him the said sum of money in the said draft or order specified, when he the said C. D. should be thereunto afterwards requested 3.

4

against the

drawer.

For that whereas the said C. D. heretofore, to wit, on, &c. at, 9. By the bearer &c. according to the usage and practice of merchants, made his certain draft or order in writing for the payment of money, commonly called a check, bearing date the same day and year aforcsaid, and then and there directed the said draft or order to certain persons, by the names, style, and firm of Messrs. &c.; and thereby then and there requested the said Messrs. &c. to pay to one E. F. or bearer, £50, and then and there delivered the said draft or order, to the said E. F. [and the said E. F. to whom, or to the bearer of the said draft or order, the payment of the said sum of money therein specified, was thereby directed to be made. after the making of the said draft or order, and before the payment of the said sum of money therein specified, to wit, on, &c. aforesaid, at, &c. aforesaid, duly transferred, assigned, and delivered the said draft or order, to the said A. B. who thereby then and there became and was, and from thence hitherto hath been and still is the lawful bearer thereof, and entitled to the payment of the said sum of money therein specified.] And the said A. B. avers, that after the making of the said, &c. (as in the preceding form from the asterisk to the end).

'As to the necessity for this averment and the expediency in some cases of averring an excuse for the neglect to give notice, ante, 663, 4, note 7.

2 Ante, 628, n. 8.

3 Ante, 628, n. 8.

The notes to the preceding precedent are applicable to this.