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APPENDIX.

19. Drawer or

In a declaration at the suit of the drawer, upon a bill payable

to his own order, the form is similar to the last precedent, omitindorser against ting the statement of the delivery to the payee, and also resembles the precedent on an inland bill, ante, 636.

acceptor.

If the declaration be at the suit of a drawer, upon a bill payable to a third person, and returned to the drawer for non-payment, the form runs as in the case of an inland bill, ante, 638.

If at the suit of an indorsee, the statement of the indorsement is introduced at the end of the acceptance as in the precedent, ante, 638, the notes to which apply to this case.

20. Payee against drawer, the drawee having refused accept

ance.

For that whereas the said C. D. on, &c. in parts beyond the seas, to wit, at, &c. that is to say, at, &c. according to the usage and custom of merchants from time immemorial, used and approved of, made his certain bill of exchange in writing, bearing date the same day and year aforesaid, and then and there directed the said bill of exchange to one E. F. by the name and addition of E. F. Esq.) by which said bill of exchange the said C. D. then and there requested the said E. F. two months after the date of that his first of exchange, (second and third of the same tenor and date not paid,) to pay to the said A. B. (by the name and addition of Mr. A. B.) or order, the sum of £50 for value received, and then and there delivered the said bill of exchange to the said A. B.

And the said A. B. avers, that afterwards and before the payment of the said sum of money in the said bill of exchange specified, or any part thereof, to wit, on, &c. aforesaid ', at, &c. * aforesaid, to wit, at, &c. aforesaid3, the said bill of exchange was presented and shewn to the said E. F. for his acceptance thereof, according to the said usage and custom of merchants, and the said E. F. then and there had sight of the said bill of exchange, and was then and there requested to accept the same, but that the said E. F. did not, nor would, at the said time when the said bill of

to make an averment at the end of the count on the bill as follows: "and the said A. B. avers, that the said 3900 livres tournois in the said bill of exchange mentioned, at the time of making the said bill of exchange, and also at the time the same was so presented and shewn for payment as aforesaid, were and still are of great value, to wit, of the value of £153 of lawful money of Great Britain, to wit, at, &c. aforesaid."

The date of the protest for non-acceptance.

The place in which the drawee is described in the bill to reside.

3 The venue,

exchange was so presented and shewn to him for his acceptance APPENDIX.

thereof as aforesaid, or at any time before or afterwards accept

the same, or pay the said sum of money therein specified, or any part thereof, but then and there wholly neglected and refused so to do, nor did, nor would he then, or at any other time accept or pay the said second and third of exchange, in the said first bill of exchange mentioned, or either of them, but therein wholly failed and made default, whereupon the said bill of exchange afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, was duly protested for non-acceptance thereof, according to the said usage and custom of merchants, of all which said several premises, the said C. D. afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, had notice.-By means whereof, &c. (the liability and promise to pay are stated as in the case of an inland bill, ante, 642.

For that whereas the said C. D. on, &c. in parts beyond the seas, to wit, at, &c. that is to say, at, &c. according to the usage and custom of merchants from time immemorial, used and approved of, made his certain bill of exchange in writing, bearing date the day and year aforesaid, and then and there directed the bill of exchange to one E. F. (by the name and addition of E. F. Esq. &c.) by which said bill of exchange, he the said C. D. then and there requested the said E. F. at two months after the date of that his first of exchange, (second and third of the same tenor addition of A. B. Esq.) or order, the sum of £50 for value re

This is not necessary, Carth. 509.-Lord Raym. 810.-Salk. 130. Stra. 214. post, 648. n. 2.-Bayl. 188.

2

The date of the protest, Bayl. 188.

3 Sometimes it is stated, that the plaintiff caused the bill to be protested; but where it has been protested on the behalf of another party and returned to the plaintiff, this would be incorrect, and the above form is preferable in all cases. The plaintiff must, in the case of a foreign bill, either state that the bill was protested, Solomons v. Staveley, Doug. 684. n. 144.—Lil. Ent. 55, or shew that it was not incumbent on him to protest it, as that the drawee had no effects of the drawer's in his hands, Rogers v. Stephens, 2 T. R. 713.-See the form of the averment of the want of effects, ante, 643. But the omission can only be taken advantage of by special demurrer, 1 Salk. 131.-1 Show. 125.-Doug. 684. n. 144.—Lil. Ent. 55.-but it would be a defect in substance if no notice be averred, ante, 633 .n. 7. In stating the protest, if the plaintiff allege that he protested the bill, or caused it to be protested, the declaration will be bad on special demurrer, but will be aided if the defendant plead to the declaration, J Show. 125.

* As to the averment of notice, ante, 633. n. 7.—When notice is nccessary, this allegation is material, Rushton v, Aspinall, Doug. 680.

21. Payee against ceptor having re fused payment.

drawer, the ac

APPENDIX. and date not paid,) to pay to the said A. B. (by the name and

!

22. Payee against drawer, where the bill has been protested as well for non-acceptance as for nonpayment.

ceived, and then and there delivered the said bill of exchange to the said A. B.; which said bill of exchange, he the said E. F. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, upon sight thereof, accepted according to the said usage and custom of merchants.

And the said A. B. in fact saith, that afterwards when the said bill became due and payable according to the tenor and effect thereof, to wit, on, &c.' at, &c. aforesaid, that is to say, at, &c. aforesaid, the said bill of exchange so accepted as aforesaid, was duly presented and shewn to the said E. F. for payment thereof, according to the said usage and custom of merchants, and the said E. F. was then and there requested to pay the said sum of money therein specified, according to the tenor and effect of the said bill of exchange, and of his said acceptance thereof. But that the said E. F. did not, nor would at the said time when the said bill of exchange 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 then and there wholly neglected and refused so to do, nor did he pay the said second or third of exchange in the said bill of exchange mentioned, or either of them, but therein wholly failed and made default 2; and thereupon afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, the said bill of exchange was duly protested for non-payment thereof, according to the said usage and custom of merchants, of all which said several premises the said C. D. afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, had notice. By means whereof, &c. (the liability and promise to pay are stated as in the case of an inland bill, ante, 642.)

Sometimes when a bill protested for non-acceptence has also been protested for non-payment, both the presentments and protests are stated, but this, as it has been observed, is unnecessary, as the liability of the drawer and indorser is complete on the protest for non-acceptance. (See 3 East. 481.) When they are stated, the declaration sets forth the presentment for acceptance, the refusal to accept, the protest for non-acceptance, and the notice to the defendant, as ante, 646, 7, and it then proceeds to state the presentment for payment, the refusal, the protest, and the notice to

'The day the bill became due, allowing the proper days of grace, as ante, 338, 9; see ante, 633. n. 2. and 2 Smith's Rep. 224.

This averment is unnecessary, the preceding allegation, that the money mentioned in the bill was not paid, being a sufficient negative of payment, Carth. 509.-Lord Raym. 810.-Salk. 130.-Stra. 214, Ante, 647. Bayl. 188, 9.

the defendant, as ante, 647, 8, and then concludes with stating the APPENDIX. defendant's liability and promise to pay on request.

indorser.

In a declaration at the suit of the indorsee against the drawer or 23. Indorsee indorser, the indorsement is inserted immediately preceding the against drawer or averment of the presentment for acceptance or payment, in the same form as in the case of an inland bill, ante, 638. 640, and the indorsement may be stated in the short form, ante, 638.

SECT. VI.

DEBT ON PROMISSORY NOTES.

FOR that whereas the said C. D. on, &c. at, &c. made his cer- 24. Payee of note tain promissory note in writing, bearing date the day and year against maker 1.

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, two months after the date thereof, to the said A. B. 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 note; and although the said sum of money in the said note specified, hath, according to the tenor and effect of the said note, been long since due and payable, yet the said C. D. (although often requested so to do,) hath not as yet paid the said sum of money, or any part thereof, but hath hitherto wholly neglected and refused so to do, whereby an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said sum of money in the said note specified, parcel of the said sum above demanded.

N. B. Add the proper common counts in debt in the conside-
ration of the note, and the account stated, and the

usual conclusion in debt.

For that whereas the said C. D. on, &c. at, &c, according to 25. By the payes the usage and custom of merchants from time immemorial used of a bill against

When debt is sustainable on a note, see ante, 545 to 548.-See the forms, Morgan's Precedents, 548.-1 Mod. Ed. 312.-See the form, 2 Bos. & Pul. 78. debt lies against indorser when he is also drawer and payce, Stratton v. Hill, 3 Price, 253.

When debt on bills is sustainable, see ante, 545. 548. and supra, note 1.

the drawer, on default of payment by the ac ceptor z

APPENDIX. and approved of within this kingdom, made his certain bill of exchange in writing, bearing date the day and year aforesaid, and then and there directed the said bill of exchange to one E. F. (by the name and addition of Mr. E. F., &c.) by which said bill of exchange, he the said C. D. then and there requested the said E. F. two months after the date thereof, to pay to the said A. B. or order, the sum of £50 value received, and then and there delivered the said bill of exchange to the said A. B., which said bill of exchange, the said E. F. afterwards, to wit, on the day and year aforesaid, at, &c. aforesaid, upon sight thereof accepted, according to the said usage and custom of merchants.

And the said A. B. avers, that afterwards, when the said bill of exchange became due and payable, according to the tenor and effect thereof, to wit, on, &c.' at, &c. aforesaid, the said bill of exchange so accepted as aforesaid, was duly presented and shewn to the said E. F. for payment thereof, according to the said usage and custom of merchants, and the said E. F. was then and there requested to pay the said sum of money in the said bill of exchange specified, according to the tenor and effect thereof, and of his said acceptance thereof, but the said E. F. did not, nor would, when the said bill of exchange was so presented and shewa to him for payment thereof, as aforesaid, or at any time afterwards, ay the said sum of money therein specified, or any part thereof, but then and there wholly neglected and refused so to do, of all which said premises, the said C. D. afterwards, to wit, on the day and year aforesaid, at, &c. aforesaid, had notice.

By means whereof, and according to the said usage and custom of merchants, he the said C. D. then and there became liable to pay the said A. B. the said sum of money in the said bill of exchange 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, agreed to pay to the said A. B. the said sum of money in the said bill of exchange specified, when he the said C. D. should be thereunto afterwards requested; whereby and by reason of the said sum of money in the said bill of exchange specified, being and remaining wholly unpaid, an action hath accrued to the said A. B. to demand and have, of and from the said C. D. the said sum of money in the said bill of exchange specified, parcel of the said sum above demanded.

The day the bill became due.

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