CHAPTER Advantage of suing on the bill specially stated in the declaration (c). But it has been held that postage is in some cases recoverable under the count for money paid (d). When a bill is dishonoured, the owner has his option to sue on the bill, or on the consideration. It is advisable to the consideration. sue on the bill; first, because it reduces the debt to a certainty; secondly, because less evidence is necessary; thirdly, in an action on the bill, proof of payment of the bill lies on the defendant; but in an action on the consideration only, if defendant show that a bill was given, plaintiff must prove that the bill was not paid (e). Interposition of To restrain Of course it is best, where possible, to join a count on the bill with a count on the consideration (ƒ); and the plaintiff may take a verdict on both counts (g). It would be foreign to the object of this little work to discuss, at length, the jurisdiction and proceedings of Courts of equity in relation to actions on bills. The following general observations may nevertheless be made. A Court of equity, where the rules of judicial equity require, will restrain an action on a bill, or restrain the defendant in an action from availing himself of a legal defence (h). And where the defendant in an action would, if judgment were obtained, be entitled to relief against such judgment on equitable grounds, he may now plead the facts which entitle him to such relief by way of defence (i). Such a plea is only allowed where final justice can be done by the Court (c) Kendrick v. Lomax, 2 C. & v. Fest Vacher Rogers. Hunt, 10 Exch, 474 huunpool Bankin R The defendant in this case di v (d) Dickinson v. Hatfield, 1 M. & Rob. 141; 5 Car. & P. 46. rected the plaintiff to charge him B. 495. (e) Hebden v. Hartsink, 4 Esp. 46; Bishop v. Rowe, 3 M. & Sel. 362. (f) A count on the consideration may still be joined, R. H. T. 1858. And a count on an account stated in all cases. (g) Vide ante. (h) See Queen of Portugal v. Glynn, 1 West. 258; Glynn v. Soares, 3 M. & K. 450; Hodgson v. Murray, 2 Sim. 515; Hood v. Ashton, I Russ. 412; Kidson v. Dilworth, 5 Price, 564; Druiff v. Lord Parker, 37 L. J., Chan. 241; Prothero v. Phelps, 25 L. J., Chan. 105; Agra and Masterman's Bank v. Hoffman, 34 L. J., Chan. 285. (i) 17 & 18 Vict. c. 125, s. 84. CHAPTER of law in the pending suit (k). And a defendant having pleaded it, is not precluded from afterwards resorting to a Court of equity (1). of action or de A Plaintiff may, where it is necessary, file a bill of dis- Discovery in aid covery in aid of an action on a bill, or of an action relating fence. to the proceeds of bills (m). But now this will seldom, if ever, be necessary, as in all causes in any of the superior Courts a plaintiff may interrogate the defendant on oath, upon any matter as to which discovery may be sought (n). If the defendant in equity be interrogated as to the consideration for the bill, he must answer not only as to the consideration given by himself, but as to that given by other parties to his knowledge (o). No bill can be filed for discovery, if it charge the defendant with a crime (p). But the former Gaming Act, 9 Anne, c. 14, s. 3 (q), and the Stock Jobbing Act, 7 Geo. 2, c. 8, s. 2, deprive defendants of this protection in matters to which those Acts related (r). (k) Wodehouse v. Farebrother, 25 L. J., Q. B. 18; 5 E. & B. 277, S. C.; Wood v. Copper Miners' Company, 17 C. B. 561; Clarke v. Laurie, 26 L. J., Exch. 38; Drain v. Harvey, 17 C. B. 257; but see Chilton v. Carrington, 24 L. J., C. P. 153. (1) Evans v. Bremridge, 2 Jur. New Series, 134; 25 L. J., Chan. 334, S. C.; Prothero v. Phelps, 25 L. J., Chan. 105. But see Terrell v. Higgs, 26 L. J., Ch. 837. (m) See Thomas v. Taylor, 3 Y. & C. 255; Wilkinson v. Leaugier, 2 You. & C. 366; or of a defence to an action. (n) 17 & 18 Vict. c. 125, s. 51. See Whateley v. Crowter, 5 E. & B. 709. (0) Glengall v. Edwards, 2 You. & Col. 125; and see Culverhouse v. Alexander, 2 You. & Col. 218. (p) Fleming v. St. John, 2 Sim. 181; Whitmore v. Francis, 8 Price, 616; 2 Sim. 182. But it has been held by the Court of Common Pleas that questions tending to criminate may be put, though they need not be answered E. T. 1862, sed quære. (9) Now repealed by 8 & 9 Vict. c. 109. (r) See Wilkinson v. Leaugier, 2 You. & Col. 366; Bullock v. Richardson, 14 Vesey, 378; Rawlings v. Hall, 1 C. & P. 11; Thomas v. Newton, 2 C. & P. 606. Lie CHAPTER 417 PLEAS 423 . 417 General Effect of New Rule 423 418 Non Assumpsit. 423 418 418 Traverse of Acceptance 420 420 Traverse of Indorsement Effect of Pleading over Duplicity of Pleas under the old Law Sham and Ensnaring Pleas 428 REPLICATION DE INJURIA 422 Declaration on a Bill drawn 423 Pleading an Estoppel To enter on the subject of pleading and evidence in detail would be foreign to the objects of this work. Many points both of pleading and evidence, have already been discussed in the foregoing Chapters. And the decisions, on the law of pleading in actions on bills of exchange, since the new Rules and the Common Law Procedure Act, have not been sufficiently numerous to remove every obscurity from that branch of the law. These considerations may, perhaps, bespeak the candour of the reader for the deficiencies of the present and the next Chapter. Two forms of action in the superior Courts were formerly brought on a bill or note, debt and assumpsit (a). CHAPTER OLD FORMS OF But debt is at common law of limited application, and ACTION. will only lie where there is a privity of contract between the DEBT. parties (b). It will, therefore, lie at the suit of the drawer against the acceptor (c); by the payee against the drawer of a bill or check (d), or maker of a note (e); by first indorsee against the drawer of a bill payable to his own order (ƒ); and in all cases by indorsee against his immediate indorser (g). It has been doubted whether an action of debt may not, at the common law, be maintained by the payee against the acceptor, though the payee be not the drawer (h); but it is conceived that no one but the drawer of a bill payable to his own order could have sued the acceptor in debt (i). On a promissory note payable by instalments, debt will not lie till the last day of payment be past (j); because the different instalments are considered to constitute but one debt, and for one debt the plaintiff can bring but one action of debt, and cannot split his demand, and vex the debtor with a multitude of suits (k). (a) These observations were written before the Common Law Procedure Act; but at present some of them are still material, at least, as showing the law on which the alterations are engrafted. (b) Lewin v. Edwards, 9 M. & W. 720. (c) Priddy v. Henbrey, 1 B. & C. 674: 3 Dowl. & R. 165. (d) Simpkins v. Potecary, 19 L. J., Exch. 242; 5 Exch. S. C. (e) Bishop v. Young, 2 B. & P. 78; Hodges v. Steward, Skin. 346; 12 Mod. 36; 1 Salk. 225, S. C. (f) Stratton v. Hill, 3 Price, 253. (g) Watkins v. Wake, 7 M. & W. 490; see Hodges v. Steward, Skin. 346. (h) See a learned note to Chitty on Bills, 9th ed. p. 690. (i) Bishop v. Young, 2 B. & P. 78; Cloves v. Williams, 3 Bing., N. C. 868; Scott, 68, S. C.; Powell v. Ancell, 3 M. & G. 171. And it was once supposed that it would not lie unless the B. words "value received," or some (j) Rudder v. Price, 1 H. Bl. (k) Baylyev. Hughes, Cro. Car. 137; Pemberton v. Shelton, Cro. Jac. 498; Hunt v. Braines, 4 Mod. 402; Hulme v. Sanders, 10 Mod. 69; 2 Lev. 4; 1 Wms. Saund. 201, a; Clun's case, 10 Rep. 127. But if a note be payable by instalments on the face of it, an action of ASSUMPSIT lies for each instalment. If, however, the note is payable by instalments but not on the face of it, only one action of assumpsit lies; and though in such a case a cognovit EE CHAPTER ASSUMPSIT. DECLARA- Statement of the To compensate for these disadvantages, the action of debt had some recommendations and, in the first place, the judgment in the first instance was not interlocutory, but final, so that, after judgment by default, the plaintiff need not execute a writ of inquiry, or refer to the Master, to compute principal and interest. Secondly, the Court could not, in any case, dispense with bail, if a writ of error were brought. The forms of declarations given by the Judges are applicable in debt as well as in assumpsit. The action of assumpsit, on account of its universal applicability, was by far the most usual remedy on a bill or note. Most of the following observations were applicable alike to the action of debt, and to the action of assumpsit. And now, by the Common Law Procedure Act, the distinction between forms of action is practically abolished. It will be convenient to exhibit the decisions on points of pleading, in the order indicated by the several stages of the pleadings. First, therefore, of the declaration. It was formerly usual to state that the parties to a bill were merchants, or persons engaged in commerce, and that the bill was drawn according to the custom of merchants. But such a statement, and, indeed, any reference whatever to the custom of merchants, which custom is parcel of the common law of the land, is unnecessary, and is now disused. In an action against the acceptor on a bill drawn by a firm, it is a sufficient description of the drawers to say that certain persons under the name, style and firm of A. & C., made their bill of exchange (1). A declaration stating that A. B. drew a bill requiring defendant to pay to the drawer's order without again naming him, is good (m), or to his order, the word his referring to the drawer (n). be taken for the amount of the (1) Tigar v. Gordon, 9 M. & W. certain persons using the name, (m) Knill v. Stockdale, 6 M. & (n) Spyer v. Thelwell, 2 C., M. & R. 692; 4 Dowl. 509, S. C. |