Act, 1846. If the power is limited to an action in the High Court, a plaintiff, whose debt on a lost bill does not amount to £20, would be compelled to sue in that Court at the risk of not recovering any costs at all; and if his debt were between £20 and £50, he might be entitled to costs on the County Court scale only.

2. Bond by way of Indemnity.

,

and G. H. of -, are

Know all men by these presents that we, A. B. of held and firmly bound unto C. D. of in the sum of £ - [double the amount of the lost instrument] to be paid to the said C. D. or his certain attorney, executors, administrators or assigns, for which payment to be well and faithfully made we bind ourselves and each of us, our and each of our executors and administrators firmly by these presents. Sealed with our seals and dated the, 18-.

Whereas a bill of exchange for £ payable months after date to the order of the drawer, was on the drawn by E. F. upon the said C. D., who duly accepted the same [or a promissory note for £- payable months after date to the order of E. F., was made by the said C. D, on and dated the -], and such bill [or note] was afterwards endorsed by the said E. F. to the said A. B., who held the same at the time it became due. And whereas the said A. B. alleges that he has since lost the said bill [or note], and as an inducement to the said C. D. to pay the amount thereof, the said A. B. has offered and the said C. D. has agreed to accept the indemnity intended to be hereby given against the claims of any other person upon the said bill [or note].

Now the condition of the above-written bond or obligation is that if the above-bounden A. B. and G. H., their or one of their executors and administrators do and shall save harmless and keep indemnified the said C. D., his executors, administrators or assigns of, from and against all claims and demands of any other person or persons whomsoever, save and except the said A. B., his executors or administrators, claiming payment of any sum or sums of money upon or in respect of the before-mentioned bill of exchange [or promissory note], and also from all actions and other proceedings whatsoever which at any time or times hereafter shall or may be brought against the said C. D., his executors or administrators upon the said bill [or note], and also from all costs, damages and expenses which he or they may bear or incur for or by reason of any such claim as aforesaid, then this obligation is to be void and of no effect, otherwise to be and remain in full force and virtue. Signed, sealed and delivered, by

the above named A. B. and G. H. in the presence of

[N.B.-This bond will require a stamp.]

3. Agreement by way of Indemnity.

between A. B. of

A. B. (L.S.)
G. H. (L.S.)

of the first part, G. H.

An agreement made this of &c. of the second part, and C. D. of &c. of the third part. [Recite as in the above form of bond and the nproceed thus: Now these presents witness that in consideration of the payment on the signing hereof by the said C. D. to the said A. B. of the sum of £ -, being the amount due upon the said bill [or note], the said A. B. and G. H. do hereby for themselves jointly, and each of them doth hereby for himself separately promise and agree to, and with the said C. D., that they, the said A. B. and G. H., or one of them will save harmless [continue in the words of the bond down to and stop at the words "then this obligation"].

Signed by the above-named A. B. and

G. II., in the presence of —

A. B.

G. H.

[This agreement will require a stamp.]

£

4. Indemnity by a Non-negociable Promissory Note and Acknowledgment.

[place] ·

18-. On demand, I [or we jointly and severally] promise to pay to Mr. G. H. of, the sum of £- for value received.

A. B. [C. D.]

5. Acknowledgment to be written at foot of a Copy of the above Note to be

kept by A. B.

I, G. H. of acknowledge that the promissory note this day made in my favour by Mr. A. B. (and Mr. C. D.), of which the foregoing is a copy, was given to me by the said A. B. by way of indemnity to me against the claims of any person or persons except himself and his executors or administrators for payment of any sum or sums of money upon or in respect of a bill of exchange drawn &c. [describing it as in form 2] [or promissory note describing it as in the same form], and also from any action which at any time hereafter may be brought against me, my executors or administrators upon the said bill [or note], and also from all costs, damages and expenses which I or they may bear or incur by reason of any such claim as aforesaid.

6. Præcipe for Plaint.

Enter plaint under Bills of Exchange Act, 1855. Particulars of claim are annexed. J. B., plaintiff's Solicitor.

18-.

7. Particulars of Plaintiff's Demand.

This action is brought under the Bills of Exchange Act, 1855, to recover £for principal and interest [or the balance of principal and interest] due to him as the payee [or indorsee] of a bill of exchange [or promissory note] accepted [or made or indorsed] by you and of which the following is a copy, and also for notarial expenses thereon.

Date. 18

17 June

[Here insert a copy of the bill or note.]

8. Another Form of Particulars. (Rule-form C, Rules 1875.)

The plaintiff demands of you payment of this bill of
exchange:-

Bill drawn by Arthur Briggs for ..
Endorsed to plaintiff accepted by you

Interest 6 months

20 Sept. Due.

..

£ s. d.

20 0 0

20 14 3

The practice as to the issue and service of summonses under this Act being similar to that relating to the issue and service of ordinary "default summonses (except that no affidavit verifying the debt is required) the forms at pages 77-80 may be used as the circumstances require. If the defendant resides in a foreign district, it will be necessary to obtain leave to sue as in other cases.

9. Notice of Application to the Judge for an Order to prevent the loss of the Bill or Note being set up as a Defence or an Indemnity being given. (Bills Act, 1882, sec. 70.)

at

Take notice that the plaintiff intends to apply to His Honour the Judge on day the o'clock in the forenoon at to order that the loss of the bill of exchange [or promissory note] sued upon shall not be set up as a defence to this action provided an indemnity is given to the satisfaction of the Judge against the claims of any other person upon such bill [or note]. To the Defendant [or W. C.

solicitor for the defendant].

I, A. B. of

1. On the

10. Affidavit in Support.

the above-named plaintiff make oath and say:—

to the order of

I received from the defendant [or from Mr. E. F. of &c.] a bill of exchange dated drawn by me [or the said E. F. or as the case may be] upon and accepted by the defendant for the payment of £the drawer at months after date [or a promissory note dated made by the defendant for the payment of £- to the said E. F. or his order at

months after date].

2. The said bill [or note] was at the time I received the same duly indorsed to me by the said E. F. and such bill [or note] remained in my personal possession until it became due on the when it was presented for payment and was dishonoured.

3. I afterwards saw the defendant personally and requested him to pay the amount of the said bill [or note] and the notarial and bank charges thereon. I at the same time produced the bill [or note] to him and he then promised payment within fourteen days, but he has hitherto failed to pay the amount or any part of it.

4. Before instructing my solicitor to obtain payment from the defendant I made a diligent search for the said bill [or note] in the places where I usually kept such securities, but I could not find it and I believe it is lost.

5. I then instructed my solicitor to inform the defendant that if he would pay the amount of the said bill [or note] I was willing to give him an indemnity against the claims of any other person thereon, and I am informed by my solicitor and verily believe that on the he sent by post to the defendant a letter of which the following is a copy:

[Copy of the letter.]

I am also informed by my solicitor and verily believe that the defendant made no reply to the said letter.

6. I have not negociated, indorsed or otherwise parted with the said bill [or note].

11. Order.

Upon the application of Mr. J. B. the solicitor for the plaintiff and upon reading the affidavit of the plaintiff sworn on the I do order that the loss

of the bill of exchange [or promissory note] which is the subject matter of this action shall not be set up as a defence thereto on the plaintiff giving to the defendant an indemnity to my satisfaction against the claims of any other person upon such bill [or note].

12. Bond of Indemnity pursuant to the Order.

Know all men &c. [as in form 2].
Whereas the said A. B. on the

J. S., Judge.

entered a plaint against the said C. D. holden at to recover the sum of £ upon

in the County Court of a bill of exchange drawn &c. [or promissory note made &c.] and whereas the said bill [or note] is alleged by the said A. B. to be lost and by an order of His Honour the Judge of the said Court dated the it was ordered that the loss of the said bill [or note] should not be set up as a defence to the said action on the said A. B. giving to the said C. D. an indemnity to the satisfaction

of the said Judge against the claims of any other person upon such bill [or note]. And whereas the said A. B. and the above-bounden G. H. have agreed to give such indemnity by entering into this bond subject to the condition hereunder written. And the above indemnity has been approved of by the Judge of the said Court as appears by his allowance in the margin hereof.

I approve of this Indemnity. J. S., Judge.

Now the condition &c. [copy verbatim as in the form 2].

If the plaintiff did not offer an indemnity before suing, and there is no other defence to the action, the defendant (if willing to pay) should apply to the Judge for an order to stay further proceedings on payment of the debt into Court after deducting his costs (King v. Zimmerman, L. R., 6 C. P., 466), but the application must be made promptly after the execution of the bond of indemnity, and before the plaintiff takes any further step.

If leave to defend has been given solely on the ground of the loss of the bill or note, and there is really no other defence, the plaintiff, after executing the indemnity, should apply to the Judge or registrar to rescind the order giving leave to defend.

13. Affidavit to obtain leave to Defend on paying Money into Court.
(Bills Act, 1855, sec. 2, and O. 35, r. 1.)

I, C. D. of

the above-named defendant, make oath and say:1. I was served with the summons issued herein on the and being desirous of defending this action I am willing to pay into Court the sum endorsed on the said summons, and such sum as the registrar may fix in respect of the plaintiff's costs.

By analogy to the practice under S. C. O. 14, r. 3, it would seem that a defendant sued on a bill of exchange is not entitled as of right to have leave to defend on payment into Court of the debt only (Crump v. Lavender (C. A.) 5 Ex. D. 211; 49 L. J. 491), but it is considered that he ought to be allowed to defend on depositing mouey as security for a further sum for plaintiff's costs.

14. Order.

Upon the application of Mr. W. C., solicitor for the defendant: It is ordered that the defendant have leave to defend this action on his paying into Court the sum of £- being the amount of the debt as endorsed upon the summons issued in this action, together with £- as the estimated amount of the plaintiff's costs thereof.

15. Memorandum accompanying Payment into Court.

Registrar.

The defendant herewith pays into Court the sum of £- (being £ for debt and £- for plaintiff's costs), in order to be let in to defend this action pursuant to the order of the

16. Affidavit to support Application for leave to defend on the Merits. (0.35, r. 1.) I, C. D. of the above-named defendant, make oath and say :

1. I was served with the summons issued in this action on the 2. [State the circumstances under which the intended defence arises-e.g. I never accepted the bill of exchange [or signed the promissory note] mentioned in the endorsement on the said summons, and never authorised any other person to accept [or sign] the same on my behalf.

Or, On the ———— E. F. of &c. called at my house in requested me to accept a bill of exchange drawn by him for £

Street,

and

as the price

of 10 tons of iron, which I had previously ordered from him, but which he had not then delivered. I at first declined to accept the bill until I had received the iron, but afterwards on being pressed to oblige him by doing so I consented and accepted the bill sued upon on the faith of his promise to deliver the iron to me within a week from that time; on the the said E. F. called his creditors together with a view to a private arrangement of his affairs, and he afterwards filed a petition under the Bankruptcy Act in the Court; the said E. F. never delivered to me the iron above-mentioned, and I received no consideration whatever for my acceptance of the said Bill.

County

Or, On the the plaintiff applied to me to assist him to obtain the loan of £- and I consented to do so; he then asked me to sign my name to a promissory note for £, payable to his order at one month after date, which he said he could get discounted by Mr. G. H. of I accordingly signed my name as the maker of the note sued upon. I heard nothing more respecting the note until the when I received a letter from the plaintiff requesting me to see him, and I did so on the following; the plaintiff then produced the note and requested me to pay it. I reminded him that I had signed it merely for his accommodation, and informed him that he had no right to ask me for payment. The plaintiff replied that I owed him an old account for and that he had given me credit for the note. I denied the alleged debt. The plaintiff then said he should take proceedings against me. I am not indebted to the plaintiff on any account, and say that I received no consideration whatever for signing the said note.]

3. [If the facts show a primâ faciæ defence add I have a good defence to this action on the merits as I am advised and believe.

17. Order giving leave to Defend.

Upon the application of Mr. L. M., solicitor for the defendant, and reading the affidavit of the defendant, sworn on the - It is ordered that the defendant have leave to defend this action [if terms are imposed here state them— e.g. on his paying into Court the sum of £ to abide the event, or giving security to the satisfaction of the registrar for the amount claimed in this action and the costs of the trial thereof].

Registrar.

If security is intended to be given, adopt such of the general forms at pages 89-91, as may be necessary. The bond will be in the following form: :

18. Bond as Security (28).

Know all men &c. [continue as in the general form to the end of the obligation.] Whereas an action has been brought in the County Court of holden at wherein the above-named A. B. is plaintiff and the above-bounden C. D. is defendant, on a certain bill of exchange [or promissory note] under the Summary Procedure on Bills of Exchange Act, 1855.

And whereas leave has been duly given, according to the provisions of the said Act, to the said C. D. to defend the said action upon his giving security to be approved by the registrar of the Court aforesaid, for the amount claimed in the said action and costs of trial thereof

[Recite as in general form that sureties have consented to join in the bond and its approval by the registrar.]

I approve of this bond.

Now the condition of this obligation is such that if the above bounden C. D., E. F. and G. H., any or either of them shall pay unto the said A. B., his executors, administrators or assigns, the amount claimed in the said action and the costs of the trial thereof, upon judgment being given for the plaintiff, then this obligation shall be void, otherwise shall remain in full force.

E. P., Registrar.