of the bill than is essential to his title, it is not necessary or advisable 2dly. How in an action against the drawer or indorser of a bill, to state that the the defendrawee accepted it, but if it be stated, it must, in an action against came party the drawer be proved, unless it be shown that he indorsed the bill after to the bill, it was accepted, or that after it was due he promised to pay." dant be &c. If the engagement of either of the parties were conditional, it must be described accordingly, and therefore a conditional acceptance must be so stated, and if declared upon as an absolute engagement, the variance will be fatal, although the condition has been performed. We have already considered when it is necessary to describe the acceptance as payable at a particular place, and when that statement [359] would be improper." became to. a Thirdly, A plaintiff, who sues upon a bill, check, or note, must show 3dly. How in his declaration his right to sue thereon, in the same manner as every the plaintiff other plaintiff must show a sufficient title, to enable him to maintain the party & enaction which he brings. Thus, in an action by the indorsee or bearer titled thereof a bill, it is necessary to show that it authorized a transfer, and he must also state that the transfer was made. In general, whatever forms a constituent part of the plaintiff's title, must be set out correctly. But this rule is liable to similar exceptions to that which makes it necessary to set out the instrument as made; and he may set it out, as in case of a bill payable to the order of a fictitious person, according to the effect given to it by law. It has been decided, that the payee of a bill or note payable to his own order, may state it to have been made payable to himself; and a note payable to a married woman, and indorsed by her husband, may be stated to have been payable to the husband. An indorsee may, it is said, declare against his immediate indorser, as on a bill of exchange made by the defendant, directed to the acceptor, and payable to the plaintiff, the act of indorsing being similar in its operation to that of making a bill, but this is not the practice. In general, however, the plaintiff's title should be stated according to the facts, and if he claim as a remote indorsec, every indorsement is usually set forth but where the first indorsement is in blank, and the plaintiff is apprehensive he will not be able to prove all the subsequent indorsements, it is proper to add a count stating the plaintiff to be immediate indorsee of some prior indorser. In such case, however, it is said, that in order to render the evidence correspondent to the declaration, all the subsequent names must be struck out of the bill before or at the time of the trial; which may be done, notwithstanding there has been a subsequent indorsement in full. In this case, in order to avoid unnecessary expense, the indorsement may be described concisely a "Frederick v. Cotton, 2 Show. 8. Smith v. McClure, 5 East, 476. 2 Smith's Rep. 43. S. C. * Barlow v. Bishop, 1 East, 432. 3 Esp. Rep. 266. S. C. Ankerstein v. Clarke, 4 T. R. 616, Arnold v. Revoult, 1 Brod. & B. 443. y Brown v. Harraden, 4 T. R. 149. z Anon. 12 Mod. 345. Peacock e. Rhodes, Dougl. 633. Anon. Holt, 296. Kyd. 206. Ante, 135. Bayl. 184. became a party, &c. 3dly. How thus: "And the said A. then and there indorsed and delivered the the plaintiff said bill of exchange to the said B., and the said B. then and there indorsed and delivered the said bill of exchange to the said C. &c." In an action against a remote indorser, though there be several indorsements between that of the payee and the defendant, the plaintiff may declare, as on an immediate indorsement by the payce to the defendant, and by him to the plaintiff, and need not notice the intermediate indorsements."(461) * It has been recently decided, that in an action against the indorser of a bill of exchange, in which the declaration stated several prior indorsements, it is not necessary to prove any indorsements on the bill prior to the defendants, though it is otherwise in an action against the acceptor; consequently, where a remote indorser is sued, there will be no risk in stating all the prior indorsements in the declaration. And in another case it was held, that in an action by the indorsee against the acceptor, where several indorsements had taken place, and which were laid in the declaration, and are consequently necessary to be proved in general, yet if the defendant applies for time to the holder, and offers terms, it is an admission of the holder's title, and a waiver of proof of all the indorsements except the first." On an indorsement, for less than the full sum mentioned in a bill or note, the plaintiff must describe the same accordingly, and show that the residue was paid. In describing the indorsement, it is not advisable to allege that the indorser's handwriting was thereunto subscribed, and if that allegation be inserted, and the bill appear to have been indorsed by an agent, the variance will be fatal. If a note payable to bearer be declared on as indorsed, the indorsement must be proved; (1) but when the declaration states that the indorsement was after the making of the bill, and it appeared in evidence to have been before, or that it was before the bill was due, and appears in evidence to have been made afterwards this is not a material variance. It is not necessary to allege, as part of the plaintiff's title, that the bill, &c. was delivered to him, as the allegation, that the bill 183. Chaters v Bell, 4 Esp. Rep. 211. Bay!. Critchlow v. Parry, 2 Campb. 182. e Hawkins v. Gardner, 12 Mod. 213. Levy r. Wilson, 4 Esp. Rep. 180, ante, 237, 8. 8 Waynam v. Bend, 1 Campb. 175.; and see Manning's Index, 75. Smith v. Mingay, 1 M. & S. 92. (461) It is not necessary to state the indorsement to be "for value received;" and if so stated, the averment is surplusage, and need not be proved. Wilson v. Codman's Ex 3 Cranch, 193. But see Welch v. Lindo, 7 Cranch's Rep. 159. An indorsement is prima facie evidence of being made for the full value. Riddle v. Mandeville, 5 Cranch, $22 But it is otherwise if made "without recourse." Welch v. Lindo. And if the indorsement be restrictive as to a right against the indorser, as if it be " without recourse” to the indorser, it is not necessary, in a declaration against the maker by the indorsee, to state such restriction. Wilson v. Codman's Ex. But the words" for value received," in setting forth a promissory note in a declaration are words of description, and not an averment, and therefore, if the words are not in the note, the variance is fatal. Saxton v. Johnson, 10 John. Rep. 418. (1) The indorsement of a note, payable to bearer, makes the indorser liable, as upon a new bill to bearer. Eccles v. Ballard, 2 M'Cord, 389. was payable to the payee, or "that an indorsement was made," includes 4thly. The it nor is it necessary to aver notice of an indorsement.! necessary averments, and defen dant's It is also necessary to show the defendant's breach of contract. If a bill be accepted payable when, or if a certain event shall take place, it breach of must be shown that such event has occurred." And if the bill be contract. payable at, or after usances, their duration must be averred." If a note be payable on or after demand, it is advisable at least in one count in an action against the maker, to allege a demand. In general, in an action against the acceptor of a bill or maker of a note, who is primarily liable, it is not necessary to aver or prove any presentment for payment, the action itself being deemed a sufficient demand, and the common breach at the end of the money counts suflicing; and we have seca, that unless the bill be accepted payable at a particular place only and not elsewhere, pursuant to the late act, no averment of a presentment there is necessary. In all cases where by the terms of the original contract, as when in the body of the bill or note, it is made payable at a particular place, a presentment there and refusal, or some discharge dispensing with the presentment, must be averred in an action against the acceptor of the one and the maker of the other, and an allegation that the inakers of a note, payable in the body of it at a particular house, became insolvent, and ceased, and wholly declined and refused, then and thenceforth to pay at the place specified, any of their notes, does not show a sufficient discharge or excuse for the want of a presentment of the particular note declared on. (1) It is sufficient, however, in these cases, if the declaration allege the presentment to have been made to the persons at whose house the bill was made payable, "according to the tenor and effect of the bill," and "the acceptance thereof." But if a bill be stated to have been accepted, payable by certain persons, at a particular place, it has been holden, in an action against the drawer, that an averment of a presentment to those persons generally, without saying at what place, is sufficient." But it suffices, in an action against an acceptor, to aver a presentment at the particular place, without showing that payment was refused there being suficient to allege the non-payment at the conclusion of the declaration. Nor is it necessary to aver, that the acceptor of the bill, or maker of the note, had notice of non-payment at the particular place. An allegation in a declaration that a bill of exchange was pre-[362] sented for payment by I. S. does not render it incumbent on the plain (1) In an action against the maker of a note, promising to pay at a particular place, it is not necessary that the declaration should allege a demand at the time and place ap pointed for payment. Carley v. Vance, 17 Mass. 389. 4thly. The tiff to show that a presentment by I. S. was made, the material allenecessary gation being the presentment, and the person by whom it was made is and defen-immaterial. averments, dant's breach of contract. When the declaration is against the drawer or indorser of a bill, or the indorser of a note, as their contract is only conditional to pay, if the acceptor of the one or maker of the other do not, it is necessary to aver a presentment for payment to the drawee of the bill, or maker of the note, on the day it became due," and that he refused to pay,"(465) or could not be found upon diligent search; and such averment should correspond with the facts. If, however, the drawee or maker cannot be found, it is sufficient to aver generally, that he was not found, without stating that any inquiry was made after him, though it is now more usual to aver that diligent search was made, and which must, as we have seen, be proved. When he has merely removed, and not absconded," and when it appears that a bill was payable at a banker's, or particular place, a presentment there must be alleged." In an action against the drawer or indorser of a bill, or the indorser of a note, it is also a most material averment, that the defendant had notice of the dishonour of the bill, or some excuse must be alleged for the neglect to give such notice, and an error in this respect will be fatal even after verdict. In the case of a foreign bill, a protest also should 66 Parker v. Gordon, 7 East, 385.-Ante, Rushton v. Aspinall, Dougl. 679. (465) But where in an action by an indorsee against his immediate indorser, there was in the declaration no averment of a demand on the maker on the day when the note became due, but only an averment, although often requested," &c. it was held, that af ter verdict the declaration was sufficient. Leffingwell v. White, 1 John. Cas. 99. If in an action against the drawer by the payee, the declaration allege a demand on the acceptor after the expiration of the time of payment, it is bad on demurrer. Lindo v Burgos, 1 Selw. N. P. 317. Where notice is averred to have been actually given of the dishonour of a bill, it must be proved as laid; and therefore if in fact it has not been given, the declaration should state that due diligence had been used to give notice, and assign the reason why it was not done. Blakely v. Grant, 6 Mass. Rep. 386. But see Stewart v. Eden, 2 Caines' Rep. 121. And if no demand is made of the maker, and a sufficient excuse exists, that excuse, and not an averment of due presentment should be stated in the declaration. Semb. Bond v. Farnham, 5 Mass. Rep. 170. If notice of non-acceptance be duly averred in an action aginst the drawer, but no protest is averred, after verdict it is sufficient, for the law will presume it to be a regular notice by protest. Lawes on Assumpsit, 364, note. And it is not necessary or proper to set forth, in the declaration a presentment or protest for non-payment of a bill, where there is an averment of a previous presentment for acceptance and refusal, and due notice thereof given; and if averred, it will be rejected as surplusage. Mason v. Franklin,3 John. Rep. 202, note. If the indorser of a note die before it becomes due, in an action against his executor by the holder, the declaration should allege the promise to pay, to be by the executor, and not by the testator, otherwise it will be a fatal variance. Stepart v. Eden, 2 Caines' Rep. 121. Where a declaration by indorsee against indorser, avers demand and notice in the usual form, it is sufficient if the plaintiff proves a state of facts, which dispenses with actual demand, &c. and shows due diligence, &c. Williams v. Matthews, 3 Cowen, 252. Where the inforsee of a bill, in an action against the indorser, relies on the want of funds of the drawer in the hands of the drawee, instead of due notice, it is necessary for him to aver that fact in the declaration. Frazier v. Harris, 2 Litt. 185. averments, be stated ; and the allegation that the plaintiff protested, or caused to 4thly. The be protested, would be improper ; and it was formerly considered, that necessary where the plaintiff proceeds for interest, &c. against the drawer or in- and defendorser of a bill, a protest must also be stated in the case of an inland dant's bill but that doctrine has lately been over-ruled. And the neglect to breach state the protest of a foreign bill can only be taken advantage of by contract. special demurrer. 1 of If there are any circumstances in the case dispensing with present-[ 363 ] ment or protest, or notice of the dishonour, as if the drawer countermanded the payment, or had no effects in the hands of the drawee, it is advisable to insert a count stating those circumstances. In an action against a drawer or indorser of a bill, and the indorser of a note, their liabilities and promises are stated to have been to pay on request, and not according to the tenor and effect of the bill." When there are several different bills or notes, a count on each may, with propriety, and indeed must be inserted in the declaration, however prolix it may thereby be rendered ; but the court will, when there are a great many notes of the same description, grant a rule for striking out all the counts but one, and giving the other notes in evidence under the account stated. The other points relative to the declarations on bills, notes, and checks, will be found in the notes to the precedents. sideration, common WITH respect to the common counts, although it is not usual, when Sect. 2. Of there is a bill or note, to rely on them alone in pleading, yet they will the counts in many cases supply the omission or defect of the count on the instru- on the conment itself; and the plaintiff will be at liberty to go into evidence of and of the the consideration for which he received it, and may recover on the common counts, if adapted to such consideration, in case he cannot counts. substantiate, in evidence, the facts necessary to support the count on the instrument, or such count should be defective: (1) taking care that the particulars of his demand state the consideration of the bill, &c.;" and perhaps to notice such demand in the counsel's opening of the 9 See the cases, Selw. N. P. 4th edit. Wade v. Beasley, 4 Esp. Rep. 7.- (1) In an action on a promissory note, where, besides the special count, there are the usual money counts and for goods sold, &c. the plaintiff may elect on which count to give the note in evidence. Burdick v. Green 18 Johns. 14. A |