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APPENDIX.

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An indorsee of a bill 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, Ir dorsee of the sum of £50, at a certain day now past, and by him the said against ac- E. F. indorsed to this deponent.

ceptor.

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Indorsee

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On a bill of exchange drawn by the said C. D. upon one E. F. and 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 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 against in- 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.

The like

has been

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

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maker.

to wit. A. B. complains of C. D. being in the custody of the 1. By payee Marshal of the Marshalsea of our Lord the now King, before the King against the himself, of a plea of trespass on the case upon promises: For that whereas the said C. D. heretofore, to wit, on the first of January, in the year of our Lord 1821, to wit, at London, in the parish of St. Mary le Bow, in the ward of Cheap, made his certain promissory note in [ 490 ] writing, his own proper hand-writing being thereunto subscribed, bear

d

Only a few of the most common forms are here given: for other precedents and notes, see 3 Chitty on Pleading, p 1 to 27. and as to the mode of declaring in general, ante, 351 to 376.

+ 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, 357. Sometimes the declaration states, that the "said C. D. by one E. F. his agent on 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, 346. Cowp. 832. 1 Esp. Rep. 135. 7 T. R. 596. See post, 490, note.

< 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, 354. 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, 354, 5. 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, 354, 5.

d 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, "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 in any place in England or Wales. And see 3 Campb. 304. Ante, 355.

• 1 Hen. Bla. 313. Bayl. 176.

f This statement is unnecessary. Lord 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 an agent: and see Levy v. Wilson, 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, 357.

b

1

APPENDIX. ing date the day and year 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 the force of the statute în such case made and provided, the said C. D. then and there became liable to pay the said A. B. the said sum of money in the said note spe[491]cified, 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, &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.

N. B. The breach of the defendant's promise to pay, is in all cases of bills 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.

These words are not absolutely necessary, see 2 Show. 422. 3 B. & P. 173. Ante, note, p. 489, 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, 354.

The averment of the delivery of the note to the payee is not necessary. 7T. R. 596. 5 East, 478. Bayl. 180. Ante, page 359.

i 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. 540. Ante, 250. 356. In an action against an indorser, in which case a presentment is necesary, 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, 250. 356. In an action by the indorsee of a bill or note, it is necessary to show that the same authorized a transfer, but this is not necessary in an action at the suit of payee. Ante, 358. 5 East, 476. Infra, note.

k The statement of the addition is unnecessary, and should in general be omitted to avoid a variance. Ante, 356.

The note, &c. is to be stated according to its legal operation. Burr. 323. 2611. Cowp. 832. Blacks. 947. Ante, 355. 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. Bia. 313. 569. 3 T. R. 182. 481. Bayl. 179. Ante, 357. And when a note has through mistake been made payable to a wrong person, it may be stated to have been pay

able to the proper one. 4 T. R. 470. Bay! 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, 356. 2 Show. 8. Cowp. 76. Bul. N. P. 473. 1 Wils. 192. 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, 343; 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. Bayl. 103, 4. Ante, 338, 9. Bayl. 177, 8.

Omission of word "sterling" here is immaterial. Glossop r. Jacob, 1 Stark. 69. Ante, 356,

Value delivered, instead of value received, not material, 2 Campb. 306.

3 & 4 Ann, c. 9. this is usually stated, but it seems unnecessary, 4 T. R. 149. Ante, 352 Lord Raym. 88. 175. 1542. Carth. 83. 269, 270. Lutw. 279.

P 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 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 shows a liability to pay immediately on the default of acceptance or payment by the party primarily h able, the declaration states the liability and promise to be to pay, on request. 3 East, 484. Post. Bayl. 190.

4 The action being founded on a legal liability, no promise need be stated, but it is usually inserted, Carth. 509. Salk. 128. Hardr. 486. LStra. 214. Ante, 357. Bat. Ab. tit. Assumpsit. F. Bayl. 190, 1

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For that whereas the said C. D. heretofore, to wit, on, &c. at, &c. APPENDIX. 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 promi- ker sed to pay to the said A. B. (by the name and addition of Mr. A. B.,) note payaor order, the sum of £15 in manner following; that is to say, the sum ble by inof £5 upon the first day of August, then next, the further sum of £5 stalments upon the first day of September, then next, and the further sum of £5 upon the first day of October, then next, and that in case default should o be made in any of the said payments, then the whole of the said sum of fault. £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 became 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 abovementioned, at, &c. aforesaid, undertook and then and there faithfully promised the said A. B. to 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 fact saith,' that after the making of the said note, to wit, [ 492] 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.

For that whereas the said C. D. heretofore, to wit, on, &c. at, &c. 3. Ditto for 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, becaine 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.

one instalment.*

For that whereas the said C. D., heretofore, to wit, on, &c. at, &c. 4. First in

As to these notes, and when the whole is recoverable, see ante, 420.

The notes in the preceding form are applicable to this precedent.

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

" Mistake in this day will be fatal. Wells v. Girling, 1 Gow. C. N. P. 21.

dorsee a The notes in the first form are here in gainst mageneral applicable.

y 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 principal, without noticing the agency, ante, 357.

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APPENDIX. 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.

ment.

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 Indorse- 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 directed to be made, after 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, 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 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. 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, undertook, and then and there faithfully promised the said A. B. to pay him the [494] 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.

second and

qent

5. State- (When the declaration is at the suit of a second or subsequent ment of a indorsee, the statement of the second indorsement is introduced of subseat the asterisk in the last precedent, and runs as follows.) And the in- said G. H. (the first indorsee,) to whom or to whose order the payment dorsements 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

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.

2

357.

This allegation is not advisable, ante,

On an indorsement for less than the full sum mentioned in the note or bill, the declaration should show 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.

necessary. 7 T. R. 596. Ante, 490, note. If the plaintiff claim as a remote indorsee, 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 indorser's hand-writting, it is prudent to add a count stating the plaintiff to be the immediate indorsee, of the first indorser ante, 359. 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.

e

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

f It is not necessary to show, that the first indorsement was to the second indor ser," or order." Willes, 562. Comyns,

d The statement of the delivery is not 311, 312.

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