APPENDIX. 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 to the said A. B. the said sum of money in the said bill of exchange specified, according to the tenor and effect of the said bill of exchange, and of his acceptance thereof." 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 bill of exchange specified, according to the tenor and effect of the said bill of exchange, and of his acceptance thereof.

[ 500] When the declaration is at the suit of an indorsee, proceed as in 11. By first the preceding precedent as far as the asterisk, and then state the indorsee a- indorsement as follows:

gainst ac

ceptor. And the said E. F. (the payee, or the drawer, if payable to his own order,) to whom or to whose order the payment of the said sum of money in the said bill of exchange specified, was to be made after the making of the said bill of exchange, and before the payment of the said sum of money therein specified, to wit, on, &c. aforesaid, at, &c. aforesaid, according to the said usage and custom of merchants, indorsed the said bill of exchange, and thereby then and there ordered and appointed the said sum of money in the said bill of exchange specified to be paid to the said A. B. and then and there delivered the said bill of exchange so indorsed as aforesaid to the said A. B. By means whereof, &c. (state the liability and promise, as in the last precedent.)

12. The

As to the statement of indorsements in general, and of a second or like by the subsequent indorsement, and of the mode of stating an indorsement second or concisely, vide ante, 493 and 360.

subsequent indorsee.

of this decision may be doubtful. Bayl.
181. 1 Campb. 139. When the bill is ac-
cepted, payable at a particular place, it is
thus stated, "accepted, &c. according to
the usage and custom of merchants, pay-
able at, &c." As to this, see ante, 248 to
261. If the defendant accepted the bill by
agent, the declaration may state the ac-
ceptance to have been made by the princi-
pal, 2 Campb. 604. 12 Mod. 561; but it
frequently runs as follows; "which said
bill of exchange he the said defendant af-
terwards, to wit, on, &c. aforesaid, at, &c.
aforesaid, by one E. F. his agent in that
behalf, upon sight thereof accepted, ac-
cording, &c." If the acceptance were
conditional or qualified, it must be describ-
ed accordingly. 4 Campb. 176. In an ac-
tion against an acceptor, a presentment for
payment is never stated, unless where he
accepted it payable at a different place.
An averment that the acceptor's hand-wri-
ting was subscribed is not advisable, ante,
357. 490, note.

This statement of the liability and con-
sequent promise is not absolutely necessa-
ry, see ante 257. 491, note. In an action
against the acceptor of a bill or maker of a
promissory note not payable on demand,

instead of alleging that the defendant became liable, and promised to pay when he should be thereunto afterwards requested, he is stated to have become liable, and promised to pay according to the tenor and effect of the bill, and acceptance in the one case and of the note in the other. Bayl 190. Ante, 490, note.

Ante, 490, note. Bayl. 190. The statement of the promise (which is a legal inference from the liability,) is to correspond with the statement of such liability. The acceptor of a bill, and the maker of a note, being the persons primarily liable, are stated to be liable, and to have premised to pay according to the tenor and effect of their original undertaking; but in a declaration against the drawer or indorser of a bill, or the indorser of a note, as it appears from the prior allegations in the declaration, that by the default of the party primarily liable, the defendant has become liable to pay immediately on request, (see 3 East, 481 Ante, 230, 1.) the declaration accordingly states his liability as well as his promise, to be to pay on request. Ante, 490, note.

PAs to the statement of the time of the indorsement, see ante, 493, note.

13. By

gainst ac

For that whereas the said A. B. heretofore, to wit, on, &c. at, &c. APPENDIX. according to the usage and custom of merchants from time immemorial, used and approved of within this kingdom, made his certain bill of exchange in writing, bearing date the day and year aforesaid, and then drawer a and there directed the said bill of exchange to the said C. D. (by the ceptor on a name and addition of Mr. C. D.) by which said bill of exchange, he the bill payable said A. B. then and there requested the said C. D. two months after the to a third date thereof, to pay to one E. F. (by the name and addition of person, and Mr. E. F.) or order, the sum of £50, value received, and then and there the plaintiff delivered the said bill of exchange to the said E. F., which said bill of and taken exchange he the said C. D. afterwards, to wit, on, &c. aforesaid, at, &c. up by him. aforesaid, upon sight thereof accepted, according to the said usage and

r

returned to

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 501 ] and effect thereof, to wit, on, &c., at, &c., aforesaid, and the said bill of exchange so accepted as aforesaid, was duly presented and shown to the said C. D. for payment thereof, according to the said usage and custom of merchants, and the said C. D. 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 C. D. 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, and thereupon afterwards, to wit, on, &c., at, &c. aforesaid, the said bill of exchange was returned to the said A. B. for non-payment thereof, and he the said A. B. as drawer of the said bill of exchange, was then and there called upon and forced and obliged to pay, and did then and there pay to the said E. F. the said sum of money in the said bill of exchange specified, together with a large sum of money, to wit, the sum of £ -" for interest thereon, whereof the said C. D. afterwards, to wit, on, &c. last 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 to the said A. B. the said sums of money, 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. last aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said A. B. to pay him the said sums of money, when he the said C. D. should be thereunto afterwards requested.

14. By

a

For that whereas the said C. D. heretofore, to wit, on, &c. at, &c. according to the usage and custom of merchants from time immemorial, payee used and approved of within this kingdom, made his certain bill of ex- gainst change in writing, bearing date the day and year aforesaid, and then the drawee

APPENDIX. and there directed the said bill of exchange to one E. F., (by the name ...... and addition of Mr. E. F.. of, &c.) by which said bill of exchange, he

[503]

drawer or

the said C. D. then and there requested the said E. F., two months after the date thereof, to pay the said A. B., (by the name and addition of Mr. A. B. &c.) or order, the sum of £50 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, to wit, on the day and year aforesaid, at, &c. aforesaid, the said bill of exchange was presented and shown to the said E. F. for his acceptance thereof, according to the said usage and custom of merchants, and the said E. F. 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 exchange was so presented and shown to him for his acceptance thereof as aforesaid, or at any time afterwards, accept the same, or pay the said sum of money therein specified, or any part thereof, but then and there neglected and refused so to do, of all which said several premises, the said C. D. afterwards, to wit, on, &c. aforesaid, at, &c. afore said, 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, &c. 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 bill of exchange specified, when he the said C. D. should be thereunto afterwards requested.

For that whereas the said C. D. on, &c. at, &c. according to the 15. Payee usage and custom of merchants from time immemorial, used and approv or indorsee ed of within this kingdom, made his certain bill of exchange in writing against bearing date the day and year aforesaid, and then and there directed indorser, the said bill of exchange to one E. F. (by the name and addition of Mr. acceptor E. F., &c.) by which said bill of exchange by the said C. D. then having re-and there requested the said E. F. two months after the date thereof, fused pay-to pay to the said A. B. or order, the sum of £50, value received and ment.t 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, &c. aforesaid, at, &c. aforesaid, upon sight thereof, accepted, according to the said usage and custom of merchants.

* The notes in the precedents, ante 498 and 500, are in general applicable to this.

If the declaration be, at the suit of an indorsee against an indorser, here follow the indorsements as in the precedent, ante, 500, and as to which, vide ante, 494.

YA subsequent promise by the drawer or indorser to pay, is evidence of this presentment, and no special count is necessa ry, 7 East, 231.

It is not necessary to allege, that an inland bill has been protested, although the plaintiff seek to recover interest. &c. Windle v. Andrews, 2 Stark. 425, see 2 Esp. Rep. 550. 2 Stra. 910. Bayl. 189.

The statement of the protest for non-ac» ceptance of an inland bill, is similar to that in the case of a foreign bill, see post, 509.

a As to the averment of notice, see ante. 496.

The drawer and indorser are liable to pay immediately on the refusal to accept 3 East, 481, and therefore the liability and the promise are stated to be, to pay on request. Bayl. 190. Ante, 230, 490.

†The notes to the precedents, ante, 423, are here applicable.

When the action is for default of payment, the statement of the acceptance is

And the said A. B. avers, that afterwards, when the said bill of ex- Appendix. change became due and payable, according to the tenour and effect thereof, to wit, on, &c. aforesaid, at, &c. aforesaid, the said bill of exchange 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 tenour 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 wholly neglected and refused so to do, of all which said several premises, the said C. D. afterwards, to wit, on, &c. last aforesaid, at, &c. had notice.

By means whereof, and according to the said usage and custom of merchants, the said C. D. then and there become liable 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. And being so liable, he the said C. D. in consideration thereof, after-[ 504 ] wards, to wit, on, &c. 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 bill of exchange specified, when he the said C. D. should be thereunto afterwards requested.

First count as usual for non-payment, as ante, 503. The second in 16. Payee, the same form, as far as the end of the statement of the delivery of the &c. against bill to the payee, ante, 503, and then proceed as follows:

drawer, where the

drawee

either to

accept

or

And the said A. B. avers, that afterwards, and before the payment could not of the said sum of money in the said bill of exchange specified, to wit, be found, on the day and year aforesaid, and on divers other days and times, between that day and the time when the said bill of exchange became. pay.h due and payable, according to the tenour and effect thereof, and also at the time when the said bill of exchange did become due and payable, to wit, on, &c. diligent search and inquiry was made after the said E. F. at, &c., to wit, at, &c., in order that the said last-mentioned bill of exchange might be presented and shown to him the said E. F. for his acceptance and payment thereof, according to the said usage and

in general unnecessary, unless in the case of bills payable after sight, Bayl. 188. And if there be any doubt as to the proof, it is not advisable to state it, for if it be stated it must be proved, 2 Campb. 471. Ante, 357, 377, note.

Bayl. 181. 188.

d See ante, 495, note. • See ante, 495, note. Bayl. 188, a subsequent promise by the defendant to pay, is evidence of a presentment, 7 East, 231. f As to this averment, see ante, 496, note. Bayl. 189.

As to this statement of the liability and promise, ante, 496, 502.

The necessity for this count appears from the case of Leeson v. Pigott, Sittings after Trin. 1788. Bayl. 187, in which it CHITTY ON BILLS.

was holden, that under a declaration, stat-
ing that the bill was presented, and accept-
ance or payment refused, the plaintiff could
not give in evidence that the drawee could
not be found. See ante, 495, note. How-
ever, a subsequent promise by the defen-
dant to pay, will be sufficient evidence of
a presentment to the drawee, and in such
case no special count is necessary, 7 East,
231.

Though this is the usual allegation, it
is sufficient to allege generally, that the
drawee was not found, without showing
that any inquiry was made after him, ante
495, note. Carth. 509.

The place where the bill is payable.
The venue.

3 L

APPENDIX. Custom of merchants, but that the said E. F. could not on such search and inquiry be found, nor hath he, at any time since the making of the said bill of exchange, hitherto accepted the same, or paid the said sum of money therein specified, or any part thereof, of all which said seve ral premises, the said C. D. afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, had notice. By means whereof, &c. (the defendant's liability and promise to pay on request are stated, as ante, 502, 3.)

[ 505 ] When it is doubtful whether due notice of non-acceptance or non-pay17. Payee, ment can be proved to have been given to the drawer or indorser, and &c. against those parties had no effects in the hands of the drawee, or gave no value drawer,&c. for the bill; it is proper in a declaration against such drawer or indorser, after the usual count stating that notice was given, to add a where the count proceeding as usual to the end of the averment of the presentment drawee had for payment, and of the drawee's refusal, (see ante, 503, and see 12 East, effects of 171.) and then as follows:

on default

of payment,

the drawer.

And the said A. B. avers, that at the time of the making of the said last-mentioned bill of exchange as aforesaid, and from thence, until, and at the time when the same was so presented and shown to the said E. F. for payment thereof as aforesaid, he the said E. F. had not in his hands any effects of the said C. D. nor had he received any consideration from the said C. D. for the acceptance or payment, by him the said E. F. of the said last-mentioned bill of exchange, nor hath he the said C. D. sustained any damage for or by reason of his not having had notice of the non-payment by the said E. F. of the said sum of money, in the said last-mentioned bill of exchange specified; of all which said several premises he the said C. D. afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, had notice, by means, &c. state the liability and promise to pay on request, as ante, 503, 4.

Form of

Proceed as usual against drawer of a bill, at the suit of indorse averment of stating the bill, acceptance, and indorsement, to plaintiff, and then as a fresh bill, follows:

demand of

where a bill has been

lost."

And the said A. B. in fact saith, that afterwards, and before the said last-mentioned bill of exchange became due and payable, according to [506] the tenor and effect thereof, to wit, on the day and year last aforesaid, at, &c. aforesaid, the said last-mentioned bill of exchange was casually destroyed, (or "lost") and the said persons so using the style and firm of E. F. (the "drawees,") then and there well knew the same, and the said C. D. then and there had notice that the said last-mentioned bill of exchange was so destroyed, (or "lost") as aforesaid, and was thereupon then and there and before the said sum of money, in the said last-men

The form varies according to the circumstances in each particular case. In an action against an indorser, it must be shown, that the drawer and prior indorsers, as well as the acceptor, had no effects, &c. It should seem that an averment of notice should be strictly proved, and therefore this count is strictly necessary, but in Boulager v. Talleyrand, 2 Esp. Rep. 550, the

want of effects was admitted in evidence under the general count.

This form is sometimes adopted, it may assist in framing a count in such a case, but quære, if it should not be averred that plaintiff was ready to give sufficient indemnity, &c. according to the statute See ante, 151, 2.