acceptor, and charged him in execution (j); the latter obtained his discharge under the Lords' Act; the holder then sued the drawer, and recovered the amount of the bill, whereupon the drawer sued the acceptor, and charged him in execution; this was holden regular, for although the discharge of the acceptor, under the Lords' Act, was a satisfaction of the debt as to the holder, yet it would not operate as such between the drawer and acceptor.

VIII. Of the Action on a Bill of Exchange, p. 366; Pleading under the new Rules, p. 370; Evidence, p. 371; Recovery of Interest, p. 376.

A BILL of exchange being a simple contract, the form of action, which is adopted for the recovery of the sum of money mentioned in the bill in case of non-acceptance or non-payment, is a special assumpsit. Formerly the declaration extended to a great length; but under the new rules T. T. 1 Will. IV. (k), concise forms are given on notes and inland bills, according to the principle of which, declarations on foreign bills may be drawn with the necessary variations. See these forms; but it must be remembered, that these rules were made before the Uniformity of Process Act, 2 Will. IV. c. 39; and the forms given by them, which were correct in actions by bill, (because then the declaration was the commencement of the suit,) are so no longer (1), the suing out the writ being now the commencement of the suit. If in an action of assumpsit against the drawer of a bill, the declaration does not allege a promise to pay, it will be bad on special demurrer (m). The frequent nonsuits, which used to occur on the ground of variances between the instrument as set forth in the declaration, and that produced in evidence, have been greatly obviated by the stat. 9 Geo. IV. c. 15, post, under tit. "Covenant, non est factum." Where the acceptance was written before the bill was drawn, the declaration described the transaction in the usual order of time, viz. the drawing first, and then the acceptance; this was holden (n) not to be a variance. And so with respect to an indorsement, whether made before (0) bill drawn, or after (p) bill became due.

By stat. 1 & 2 Geo. IV. c. 78, s. 1, if any person shall accept a

(j) Macdonald v. Bovington, 4 T. R. 825, cited in English v. Darley, 2 Bos. & Pul. 61.

(k) 2 B. & Ad. 783; 7 Bingh. 774; 5 M. & P. 813; 1 Cr. & J. 468; 1 Tyr. 520.

(1) Per Parke, B., in Abbott v. Aslett,

1 M. & W. 209.

(m) Henry v. Burbidge, 3 Bingh. N. C. 501; 4 Sc. 296.

(n) Molloy v. Delves, 7 Bingh. 428; 5 M. & P. 275.

(0) Russel v. Langstaffe, Doug. 514. (p) Young v. Wright, 1 Campb. 139.

bill payable at the house of a banker, or other place, without further expression in his acceptance, such acceptance shall be deemed, to all intents and purposes, a general acceptance of such bill; but if the acceptor shall, in his acceptance, express that he accepts the bill payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed to be to all intents and purposes a qualified acceptance, and the acceptor shall not be liable to pay the said bill, except in default of payment, when such payment shall have been duly demanded at such banker's house or other place. Since this statute it has been adjudged, that the holder of a bill accepted, payable at a banker's, but omitting the words "there only," is not bound to present it at the banker's, and consequently is not guilty of laches, if he omits to do so; and may still recover against the acceptor, in the event of the banker's failure, although a considerable time, e. g. three weeks, have elapsed since the bill became due, during all which time the acceptor had funds in the banker's hands, exceeding the amount of the bill (p). In such case no averment or proof of presentment for payment at the place mentioned is necessary (q). But in an action against the drawer of a bill (payable at a particular place, where the drawee accepts it payable at that place,) on the ground of non-payment by the acceptor, it is necessary to prove a presentment to the acceptor at that place; for the statute neither intended to alter, nor has it altered, the liability of drawers; but is confined in its operation to acceptors only (r).

A conditional acceptance cannot be declared on as an absolute acceptance, even after condition performed (s). In action on a bill against an acceptor for the honour of the drawer, it must be alleged, that when the bill arrived at maturity, it was presented to the drawee for payment. And this rule holds whether the bill be a bill payable after date (t) or after sight (u). Where a bill has been accepted by the drawee, if another person accepts it also for the purpose of guaranteeing the first acceptor, the second acceptance is merely a collateral undertaking, and must be declared on (v) as such; for there is not any custom of merchants authorizing a series of acceptors.

In Heys v. Heseltine and another (w), where it was averred that the defendants accepted the bill, and the acceptance was by an agent thus, "for Heseltine and Co., John Wilson:" Lord Ellenborough was of opinion, that the evidence supported the declara

(p) Turner v. Hayden, 4 B. & C. 1. (q) Selby v. Eden, 3 Bingh. 611; Fayle v. Bird, 6 B. & C. 531. See also Hawkey v. Borwick, 4 Bingh. 135.

(r) Gibb v. Mather, 8 Bingh. 214; 2 Cr. & J. 254, S. C.

(s) Langston v. Corney, 4 Campb. 176.

(t) Hoare v. Cazenove, 16 East, 391. (u) Williams v. Germaine, 7 B. & C. 468.

(v) Jackson v. Hudson, 2 Campb.

447.

(w) 2 Campb. 604.

tion; observing, that if the defendants accepted the bill by an agent, in contemplation of law, they accepted it themselves: and it was a general rule in pleading, that facts might be stated according to their legal effect.

When the action is brought between the immediate parties to the bill, it is usual to subjoin such counts as will embrace the consideration for which the bill has been given: for as the bill does not merge the original demand, if the plaintiff fail in substantiating in evidence the special count, he may resort to evidence on the common counts Under the new rules, counts upon a bill or note, and for the consideration, in goods, money, or otherwise, are considered as founded on distinct subject matters of complaint. In Alves v. Hodgson, 7 T. R. 241, where the plaintiff had declared specially on a written contract made in Jamaica, and on a quantum meruit, and was prevented from establishing the special count, because the contract, by the laws of the island of Jamaica, was void for the want of a stamp; it was holden, that he might recover on the quantum meruit. So where a promissory note had been given for money lent, which when produced in court was unstamped, Lord Kenyon, C. J., permitted the plaintiff to recover on a common count for money lent, by proving that when the money, for which the note had been given, was demanded of the defendant, he acknowledged the debt (x). In cases of this kind, if the defendant call for a particular of the plaintiff's demand, the causes of action in the general counts ought to be stated in the particular, otherwise the plaintiff will not be permitted to go into evidence on them (y). If the plaintiff's particular conveys the requisite information to the defendant, however inaccurately it may be drawn up, it is sufficient, unless the defendant will undertake to swear that he has been misled by the inaccuracy (z). And although the general rule is, that the plaintiff, who has delivered an imperfect particular, shall be restricted in his evidence, and not permitted to recover any thing ultra the contents of such particular, yet if the defendant, in attempting to defeat the restricted claim of the plaintiff, gives him a better case than he was at liberty to make for himself, he will be entitled to a verdict for all that is proved due to him; what he could not have insisted on as a right, he may receive as a boon. Hurst v. Watkis, Ellenborough, C.J., 1 Campb. 68. Bills of particulars are not to be construed with all the strictness of declarations. Per Mansfield, C. J., in Brown v. Hodgson, 4 Taunt. 190. See also Davies v. Edwards, 3 M. & S. 380, and Lambirth v. Roff, 8 Bingh 411. Disbursements are recoverable under an item for "cash advanced." Harrison v.

(x) Tyte v. Jones, 1 East's R. 58, n. (a); Wilson v. Kennedy, 1 Esp. N. P. C. 245, S. P.

(y) Wade v. Beasley, 4 Esp. N. P. C.

7, Kenyon, C. J.

(z) Day v. Bower, Ellenborough, C. J., 1 Campb. 69, n.

Wood, 8 Bingh. 371. By R. G. Trin. T. 1 Vict. (b), in any case in which plaintiff (in order to avoid the expense of a plea of payment) shall have given credit in the particulars for any sum therein admitted to have been paid to plaintiff, it shall not be necessary for defendant to plead payment of such sum.

Proceedings subsequent to the Declaration.-The plaintiff having declared, the defendant, if he has not any defence, either compromises the action by paying or giving security for the debt and costs, or he lets judgment go by default. If the holder commences one action against the drawer (c), and another against the indorser, the court will stay all the proceedings upon payment of the amount of the bill and the costs of the two actions, without regarding the costs which may have been incurred in actions brought by the holder against any other parties to the bill. When the application for staying proceedings came from the acceptor, the original defaulter, the court would not regard it, except upon payment of the amount of the bill and costs in all the actions (d). But now by R. G. T. T. 1 Vict. (e), in any action against an acceptor of a bill, or the maker of a promissory note, the defendant shall be at liberty to stay proceedings on payment of his debt and costs in that action only. When the defendant suffers judgment to go by default, the plaintiff must, before he is entitled to final judgment and execution, ascertain the amount of the debt. Formerly this was done by executing a writ of inquiry of damages; but of late years, in the Courts of King's Bench (f) and Common Pleas (g), and now in the Court of Exchequer (h), in actions upon promissory notes and bills of exchange, where it appears on the face of the declaration, that the actions are brought on the notes or bills (i), and the money mentioned therein is not foreign money, it is usual to apply to the court for a rule to show cause why it should not be referred to the master to see what is due for principal and interest, and why final judgment should not be signed thereon, without executing a writ of inquiry; which rule is made absolute on an affidavit of service, unless good cause be shown to the contrary. In vacation time application may be made to one of the judges at chambers. N. The rule ought not to be applied for on the day of signing interlocutory judgment, but some day after (j). The rule to compute will be allowed, although bill has been destroyed (k). Where the bill of exchange is for foreign money (1), e. g. for Irish money, the court

(b) 8 A. & E. 280; 3 Nev. & P. 379; ante, p. 129.

(c) Smith v. Woodcock, 4 T. R. 691, S. P. on a promissory note, Windham v. Wither, and Windham v. Trull, Str. 515. (d) Admitted per Cur. in Smith v. Woodcock, 4 T. R. 691.

(e) 8 A. & E. 277.

(f) Shepherd v. Charter, case on a bill of exchange, 4 T. R. 275.

(g) Rashleigh v. Salmon, case on a promissory note, C. B., June 15th, 1789,

VOL. I.

1 H. Bl. 252; Andrews v. Blake, case on a bill of exchange, C. B. Nov. 25, 1790, 1 H. Bl. 529.

(h) See Biggs v. Stuart, 4 Pri. (Ex.) 134. (i) Osborne v. Noad, 8 T. R. 648. (j) Gordon v. Corbett, Smith's R. 179. (k) Clarke v. Quince, 3 Dow. P. C. 26. (1) Maunsell v. Lord Massareene, 5 T. R. 87. But see stat. 6 Geo. IV. c. 79, for assimilating the currency in the United Kingdom.

BB

will not permit the master to ascertain the value. In this case, therefore, the plaintiff must have recourse to a writ of inquiry; upon the execution of which it is now holden (m), notwithstanding former decisions to the contrary (n), that it is not in any case necessary to prove the bill of exchange, the bare production of it being sufficient for by suffering judgment to go by default, the defendant admits the cause of action to the amount of the bill. The bill, however, must be produced to the jury, in order that they may see whether or not any part of it has been paid.

:

Pleading under the New Rules.

By R. G. H. T. 4 Will. IV., No. 2, in all actions upon bills of exchange and promissory notes, the plea of non assumpsit shall be inadmissible. In such actions, therefore, a plea in denial must traverse some matter of fact; ex. gr. the drawing, or making, or indorsing, or accepting, or presenting, or notice of dishonour, of the bill or note. ["The new rule is confined (o) to cases, where the action is only on the note, and on the promise contained in or implied by law from it: it is to be read, as if it were worded thus:-‘ in all actions on bills of exchange and promissory notes simpliciter, without any other matter.' Hence where an executor declared on a note payable to his testator, laying a promise to pay him, the executor, after the death of the testator; it was holden (p), that such promise might be denied by a plea of non assumpsit, notwithstanding the new rules."]

No. 3. All matters of confession and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable, on the ground of fraud or otherwise, shall be specially pleaded, ex. gr. illegality of consideration, drawing, indorsing, accepting, &c. bills or notes, by way of accommodation, &c. If the plea be, that no consideration was given for the bill or note, and the replication, that there was; the onus lies on the defendant to prove that there was not any consideration, although the plaintiff, in his replication, alleges the affirmative (g). To a declaration by indorsee against acceptor, the defendant cannot plead that the bill was accepted by him without consideration (r) from the drawer; for such is not inconsistent with plaintiff's legal demand, indorsement primâ facie importing consideration (s). Under the new rules, every matter, independent of the making of the promise, should be affirmatively stated; for the object of those rules was, to make each side understand what they were come to try. The court,

(m) Green v. Hearne, 3 T. R. 301. (n) Snowdon v. Thomas, 3 Wils. 155; 2 Bl. R. 748, S. C.

(0) Per Parke, B., in Timmis v. Platt, 2 M. & W. 721.

(p) Timmis v. Platt, 2 M. & W. 720.

See Donaldson v. Thompson, 6 M. & W. 316.

(q) Lacey v. Forrester, 5 Tyrw. 567. See Whitaker v. Edmunds, 1 A. & E. 638. (r) Low v. Chifney, 1 Bingh. N. C. 267. (s) Reynolds v. Ivemey, 3 D. P. C. 453.