000000000000000

tioned bill of exchange specified, became due and payable, according to APPENDIX. the tenor and effect thereof, requested by the said A. B. to give to him the said A. B. another bill of exchange, of the same tenor with the said last-mentioned bill of exchange so destroyed, (or "lost,") as aforesaid; but the said C. D. then and there wholly refused so to do. And the said A. B. avers, that afterwards, and when the said sum of money, in the said last-mentioned bill of exchange specified, became due and payable, according to the tenor and effect thereof, to wit, on, &c. at, &c. at London aforesaid, in the parish and ward aforesaid, payment of the said sum of money, in the said last-mentioned bill of exchange specified, was duly requested of the said persons so using the style and firm of E. F. (the drawees,) and also at the place appointed by the said lastmentioned acceptance for the payment thereof as aforesaid, (that is to say,) at, &c. according to the tenor and effect of the said last-mentioned bill of exchange, and of the said acceptance thereof; and the said indorsement so made thereon as aforesaid. But the said persons so using the style and firm of E. F. did not, nor would, nor did any other person or persons when payment of the said sum of money in the said last-mentioned bill of exchange specified, was requested as aforesaid, or any time since, pay the said sum of money in the said last-mentioned bill of exchange specified, or any part thereof, but wholly neglected and refused so to do, of all which said several premises last-mentioned, the said C. D. afterwards, to wit, on the day and year last aforesaid, there had notice.

ceptor.

e

d

FOR that whereas one E. F. on, &c. in parts beyond the seas, to against ac- 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, his own proper hand being thereunto subscribed, bearing date the day and year aforesaid, and then and there directed the said bill of exchange to the said C. D. (by the name and addition of C. D. Esq.,') by which said bill of exchange, he the said E. F. then and there requested the said C. D. two months after the date, (or "at two usances, that is to say,"") 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 A. B. Esq.) or order, the sum [ 508 ]of £50, value received, and then and there delivered the said bill of exchange to the said A. B., which said bill of exchange he the said C. D. &c. (state the acceptance and the liability to pay and promise, as in the preceding precedent.)

19. Drawer or indorser against acceptor.

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

Only a few common forms are here given; see other precedents, 3 Chitty on Pleading, 52 to 63, and how to declare in general, see ante, 351 to 376.

a As to the statement by whom drawn, ante, 481, note.

As to the statement of the time and date, ante, 481, notes.

< Statement of the place where made, and the venue, ante, 481, note.

d Unnecessary, ante, 498, note.

e Unnecessary, and not advisable, ante, 498, note. Bayl. 176.

f Not necessary, ante, 498, note.

8 The statement of the bill is to be according to its legal operation, ante, 352.

If the bill be payable at usance, the length of it should be averred as follows, "at two usances, that is to say, at two months after the date thereof," Salk. 131. 3 Keb. 645.-Bayl. 108. Ante, 356. Bay!. 184, 5 and the omission will be fatal on special demurrer, id. ibid. Bayl. 184. Sometimes the averment of usance is more formal, and is inserted just before the statement of the presentment for payment, thus, " and the said plaintiff in fact says, that an usance mentioned in any bill of exchange drawn in London, and payable at Venice is, and at the several times aforesaid was, three months from the date of the said bill,

and no other time whatever." Bay! 184, 5.

It is said, that in an action on a bill coa sisting of several parts, if the plaintiff have each part, it may be doubted whether he need take notice of this condition, because all the parts collectively make an uncond tional bill, and where he has not each part, it should seem more correct to state that the drawer made his certain bill of ex change in writing in three parts, his proper hand being subscribed to each of the said parts, bearing date, &c. and directed, &c. and by one of the said parts requested, &c. Bayl. 172. 177. 180. 184. k Ante, 490, note.

When the money in which the bill is payable is foreign, it is usual, though per haps unnecessary, (1 Wils. 185. 4 Bro Parl. Cas. 604.) 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 es change mentioned, at the time of making the said bill of exchange, and also at the time the same was so presented and shown for payment as aforesaid, were and still are of great value, to wit, of the value of £158 of lawful money of Great Britain, to wit. at, &c. aforesaid."

0000000500000000

own order, the form is similar to the last precedent, omitting the state- APPENDIX. ment of the delivery to the payee, and also resembles the precedent on an inland bill, ante, 498.

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, 500.

If it is at the suit of an indorsee, the statement of the indorsement is introduced at the end of the acceptance, as in the precedent, ante, 500, the notes to which apply to this case.

drawee ha

For that whereas the said C. D. on, &c. in parts beyond the seas, to 20. Payee wit, at, &c. that is to say, at, &c. according to the usage and custom of against merchants from time immemorial used and approved of, made his certain drawer, the bill of exchange in writing, bearing date the same day and year aforeving refusaid, and then and there directed the said bill of exchange to one E. F. sed accept(by the name and additition of E. F. Esq.) by which said bill of exchange ance. 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. aforesaid, the said bill of exchange was presented and shown to the [ 509 ] 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. E. did not, nor would, at the said time when the said bill of exchange was so presented and shown to him for his acceptance 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, ac

The date of the protest for non-acceptance. "The place in which the drawee is described in the bill to reside.

• The venue.

This is not necessary, Carth. 509. Ld. Raym. 810. Salk. 130. Stra. 214. Post, 510, note. Bayl. 188.

The date of the protest, Bayl. 188. * 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, Dougl. 684, n. 144. Lil. Ent. 55,
or show that it was not incumbent on him
to protest it, as that the drawee had no ef-
fects of the drawer's in his hands, Rogers
v. Stevens, 2 T. R. 713. See the form of
the averment of the want of effects, ante,
505. But the omission can only be taken
advantage of by special demurrer, 1 Salk.
131. 1 Show. 125. Dougl. 684, n. 144.
Lil. Ent 55. But it would, be a defect in
substance, if no notice be averred, ante,

APPENDIX. cording to the said usage and custom of merchants, of all which said **CU°°°°°°°°° 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, 503.)

ment.

21. Payee For that whereas the said C. D. on, &c. in parts beyond the seas, to against wit, at, &c. that is to say, at, &c. according to the usage and custom of drawer, the merchants from time immemorial used and approved of, made his ceracceptor having re-tain bill of exchange in writing, bearing date the day and year aforefused pay-said, and then and there directed the said 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 [ 510 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 A. B. Esq.) or order, the sum of £50, for value received, 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 shown 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 shown 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; 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, 503.)

22. Payee

bill

Sometimes when a bill protested for non-acceptance, has also been

against
drawer, 496, n. In stating the protest, if the plain-
where the tiff allege that he protested the bill, or
has caused it to be protested, the declaration
been pro- will be bad on special demurrer, but will
tested
as be aided if the defendant plead to the de-
well for claration, 1 Show. 125.
non-accept- As to the averment of notice, ante,
ance as for 496, note. When notice is necessary, this
non-pay- allegation is material, Rushton v. Aspinall,
Dongl. 680.

ment.

The day the bill became due, allowing the proper days of grace, as ante, 264, 5, see ante, 495, note, and 2 Smith's Rep 224.

"This averment is unnecessary, the preceding allegation, that the money menta ed in the bill was not paid, being a sufficier negative of payment, Carth. 509. Lord Raym. 810. Salk. 130. Stra. 214. Ame 509. Bayl. 188, 9

protested for non-payment, both the presentments and protests are APPENDIX. 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, 508, and it then proceeds to state the presentment for payment, the refusal, the protest, and the notice to the defendant, as ante, 508, 9, and then concludes with stating the defendant's liability, and promise to pay on request.

drawer or

In a declaration at the suit of the indorsee against the drawer or in- 23. Indordorser, the indorsement is inserted immediately preceding the averment see against of the presentment for acceptance or payment, in the same form as in indorser. the case of an inland bill, ante, 500, and the indorsement may be sta- [ 511 ] ted in the short form, ante, 500.