consideration thereof, afterwards, to wit, on, &c. last aforesaid, at, APPENDIX. &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. 15. Payee or indorsee against drawer or in dorser, acceptor having refused For that whereas the said C. D. on, &c. at, &c. 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 payment. then and there directed the said bill of exchange to one E. F. (by the name and addition of Mr. E. F., &c.) by which said bill of exchange he the said C. D. then and there requested the said E. F. two months after the date thereof, to pay to the said A. B. or order, the sum of £50 value received, and 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'. And the said A. B. avers, that afterwards, when the said bill of exchange became due and payable, according to the tenor and effect thereof, to wit, on, &c., aforesaid, at, &c. aforesaid, the said bill of exchange was duly presented and shewn to the said E. F. for payment thereof, according to the said usage and custom of merchants3, 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 shewn 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 The notes to the precedents, ante, 636. are here applicable. When the action is for default of payment, the statement of the acceptance is 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. 474.-Ante, 459. 484. n. 2. 2 See ante, 633.-Bayl. 181. 188. 3 See ante, 633. n. 3.-Bayl. 188. a subsequent promise by the defendant to pay, is evidence of a presentment, 7 East, 231. TT APPENDIX. 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 became 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, 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. 16. Payee, &c. against drawer, where the drawee could not be found, either to accept or pay 3. First count as usual for non-payment, as ante, 641. The se cond in the same form, as far as the end of the statement of the delivery of the bill to the payee, ante, 641, and then proceed as follows: 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, and on divers other days and times, between that day and the time when the said bill of exchange became due and payable, according to the tenor 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. 5, to wit, at, &c., in order that the said last-mentioned bill of exchange might be presented and shewn to him the said E. F. for his acceptance and payment thereof, according to the said usage and custom of merchants, but that the said E. F. could not on such search and in 1 2 4 As to this averment, see ante, 633. n. 7.-Bayl. 189. As to this statement of the liability and promise, ante, 634, 640. 3 The necessity for this count appears from the case of Leeson v. Pigott, Sittings after Trin. 1788. Bayl. 187, in which it was holden, that under a declaration, stating that the bill was presented, and acceptance or payment refused, the plaintiff could not give in evidence that the drawee could not be found. See ante, 633. n. 4. However a subsequent promise by the defendant 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 gene rally, that the drawee was not found, without shewing that any inquiry was made after him, ante, 633. n. 4.-Carth. 509. The place where the bill is payable. The venue. quiry be found, nor hath he, at any time since the making of the APPENDIX. said bill of exchange, hitherto accepted the same, or paid the said sum of money thercin specified, or any part thereof, 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 defendant's liability and promise to pay on request are stated, as ante, 640, 1, 2.) against drawer, payment, where the drawee had no effects of the drawer. When it is doubtful whether due notice of non-acceptance or 17. Payee, &c. non-payment can be proved to have been given to the drawer or indorser, and those parties had no effects in the hands of the drawee, or gave no value 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 count' proceeding as usual to the end of the averment of the presentment for payment, and of the drawee's refusal, (see ante, 641. and see 12 East. 171.) and then as follows: 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 shewn 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 lastmentioned 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, 642.) This form varies according to the circumstances in each particular case. In an action against an indorser, it must be shewn, 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 frequently necessary, but in Boulager against Talleyrand, 2 Esp. Rep. 550, the want of effects was admitted in evidence under the general count. ΤΤΟ APPENDIX. Proceed as usual against drawer of a bill, at the suit of indorsee, stating the bill, acceptance, and indorsement, to plaintiff, ment of demand and then as follows. Form of aver of a fresh bill, where a bill has been lost 1. 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 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-mentioned bill of exchange specified, became due and payable, according to 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 86 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 last-mentioned 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 at 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. 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, 196. SECT. V. DECLARATIONS ON FOREIGN BILLS. APPENDIX. FOR that whereas one E. F. on, &c. in parts beyond the 18. Payee against seas, to wit, at, &c. that is to say, at, &c. ', according to the acceptor. usage and custom of merchants from time immemorial, used and approved of, made his certain bill of exchange in writing, 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. 7 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 1°, the sum 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 preceding precedent). * Only a few common forms are here given; see other precedents, 3 Chitty on Plead. 52 to 63, and how to declare in general, see ante, 449 to 471. As to the statement by whom drawn, ante, 627. n. 1. As to the statement of the time and date, ante, 627. n. 2, 3, 4. 3 Statement of the place where made, and the venue, ante, 627. n. 3. Unnecessary, ante, 630. n. 4. 451. 5 Unnecessary, and not advisable, ante, 458. 636. n. 5.-Bayl. 176. 'Not necessary, ante, 457. 636. 7 The statement of the bill is to be according to its legal operation, ante, 452. * 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, 456. Bayl. 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 men tioned 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, aud no other time whatever," Bayl. 184, 5. It is said, that in an action on a bill consisting 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 unconditional bill, and where he has not each part, it should seem more correct to state that the drawer made his certain bill of exchange 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. Ante, 628. "When the money in which the bill is payable is foreign, it is usual, though perhaps unnecessary.-1 Wils. 185,-4 Bro. Parl. Cas. 604.), |