in abatement; because a plea in abatement ought to give a better writ, not to show that the plaintiff could have no action at all. The effect, however, of a judgment for the defendant would be, that if a man made a note to himself and others carrying on business under a particular firm, and the partnership was dissolved, the promissory note could neither be put in suit as such, nor enforced as an equitable agreement, because on a promissory note stamp. Considering, therefore, the quantity of circulating paper in this country, standing under the same circumstances with the note in question, the consequence of such a decision might be highly injurious. However, the case of Moffat v. Van Millengen (o) was unanswerable. Evidence. It is a general rule, that to prove the contract the original note must be produced in evidence. This rule is dispensed with in special cases only; as where it can be proved, that the note has been lost or destroyed by the defendant (p), or that it is in the hands of the defendant, and that he has had notice to produce it (q). In these cases a copy of the note, or parol evidence of its contents, may be received. The remaining evidence necessary to support the action will vary according to the character in which the parties bring the action. In an action by payee against the maker, the hand-writing of the maker must be proved by the subscribing witness, if any; if not, by some person who is competent to prove such hand-writing. In an action by first indorsee against the maker, the same evidence as in the preceding case, together with proof of the indorsement to the plaintiff, will be necessary. In an action against an indorser, proof of the hand-writing of the maker, or of any indorser prior to the defendant, (except the first,) unless specially alleged in the declaration, is not necessary; but in this case it must be proved that payment was duly demanded of the maker, and that the maker refused to pay, or made default therein, and that notice of such refusal or default was given to the defendant within a reasonable time. In action against the maker of a note, although the promise be to pay the money at a particular place, it is not necessary to prove a presentment at that place (r); if the place of payment be mentioned in the margin or at the foot of the note (s). If a bill be payable or indorsed specially to a firm, evidence must be given that the firm consists of the persons who sue as plaintiffs; secus, if the indorsement be in blank (t). A. being in insolvent circumstances (u), B. undertook to be a security for a debt owing from A. to C., by indorsing a promissory note made by A., payable to B., at the house of D. The note was accordingly so made and indorsed, with (0) 27 Geo. III. B. R. 2 Bos. & Pul. 124, n. (e), cited in Rose v. Poulton, 2 B. & Ad. 826. (p) Lord Raym. 731. (9) 2 Bos. & Pul. 39. (r) Nicholls v. Bowes, 2 Campb. 498 ; Williams v. Waring, 10 B. & C. 2. (s) Price v. Mitchell, 4 Campb. 200. (t) Ord v. Portal, 3 Campb. 239. (u) Nicholson v. Gouthit, 2 H. Bl. 609. the knowledge of all parties. Just before it became due, B. having been informed that D. had no effects of A. in his hands, desired D. to send the note to him, B., and said he would pay it, B. having then a fund in his hands for that purpose; the note was not presented at D.'s house till three days after it was due. It was holden, that C. could not maintain an action against B. on the note, not having used due diligence in presenting the note as soon as it was due, to D. for payment, and in giving immediate notice to B. of the nonpayment by D.; for B. had a right to insist on the strict rule of law respecting the indorser of a note, notwithstanding the particular circumstances of the case. In an action by a second, third, or any subsequent indorsee, against the maker, where the first indorsement is in blank; as the plaintiff is not bound to set forth any indorsement, except the first, but may strike out the others, if he adopts this course, the proof will be the same as in the preceding case; but if all or any of the indorsements, subsequent to the first, are set forth, they must be proved. Indorsements of interest are to be presumed (v) to have been written at the time they bear date, until contradicted. The defendant cannot give in evidence a parol agreement, entered into when the note was made, that it should be renewed when it became due (w); nor a parol agreement that payment shall not be demanded (x) until after such a time; for this would be incorporating with a written contract an incongruous parol condition, which is contrary to first principles. Where a promissory note, on the face of it, purported to be payable on demand, parol evidence is not admissible to show (y), that, at the time of making it, it was agreed that it should not be payable until after the decease of the maker. Where in an action by the indorsee against the maker of a promissory note, payable with interest on demand, the plaintiff having proved that he gave value for it, the defendant tendered evidence of declarations made by the payee, when the note was in his possession, that he (the payee) had not given any consideration for it to the maker; it was holden (2), that the evidence was inadmissible, as the payee could not be identified with the plaintiff, and the note could not be treated as over due at the time of the indorsement. So where, in an action by indorsee of A., of a note, against maker, plea, that the note was made without consideration, and indorsed and delivered by A. to W., for the purpose only of its being discounted; that W., in fraud of the maker, (defendant,) and without his consent, indorsed the same, and delivered it to plaintiff, who gave no consideration, and who knew of the want of authority; it was holden (a), that evidence tendered by defendant (v) Smith v. Battens, 1 M. & Rob. 341. (w) Hoare v. Graham, 3 Campb. 57. (x) Free v. Hawkins, 8 Taunt. 92; Mosley v. Handford, 10 B. & C. 729, S. P.; Rawson v. Walker, 1 Stark. 361; Foster v. Jolly, 1 Cr. M. & R. 703; 5 Tyrw. 239. (y) Woodbridge v. Spooner, 3 B. & A. 233. (2) Barough v. White, 4 B. & C. 325. (a) Phillips v. Cole, 10 A. & E. 106. of declarations made by W. to prove the fraud, was not admissible; inasmuch as there was not shown any community of interest, neither was any evidence offered, which either directly or indirectly connected the plaintiff with W., or to show want of consideration, or that the note had been taken when over due. An indorser on a note (b), who has received money from the payee to take it up, is a competent witness for the maker in an action against him by the indorsee, to prove that he had satisfied the note, being either liable to the plaintiff on the note, if the action is defeated, or to the defendant for money had and received, if the action succeeds; and his being also liable in the latter case, to compensate the defendant for the costs incurred in the action, by such non-payment, makes no difference. In an action by the indorsee against the maker of a promissory note (c) without original consideration, if the payee has become bankrupt, and obtained his certificate subsequently to the date of the note, he is not a competent witness for the defendant, for he is no longer liable to the plaintiff; but would be liable to the defendant, if the latter were obliged by this action to pay the promissory note drawn for his accommodation. One joint maker of a promissory note is a witness to prove the signature of the other (d). In an action by the payee against one of three makers of a joint and several promissory note, another of the makers was called as a witness for the plaintiff, and stated on his examination on the voir dire, that the note had been given by the defendant as principal, and that it was signed by himself and the other maker as sureties: it was holden (e), that the witness was competent. Where a promissory note, beginning, "I promise to pay," was signed by one member of a firm for himself and partners; it was holden (ƒ), that he was liable to be sued severally upon the note. On a plea that the defendant did not make the promissory note mentioned in the declaration, he cannot give in evidence that he was of imbecile mind at the time when he made it (g). Conclusion.-The limits prescribed to this Abridgment will not permit the insertion of any more cases under this head, nor indeed is it necessary; for although a promissory note (h), while it continues in its original shape, does not bear any resemblance to a bill of exchange, yet when it is indorsed the resemblance begins; for then it is an order by the indorser upon the maker of the note to pay to the indorsee; the indorser is as it were the drawer, the maker (b) Birt v. Kershaw, 2 East, 458, recognized by Sir W. Grant, M. R., in Paul v. ——, administrator of Hamilton, Privy Council, 29th June, 1805. (c) Maundrell v. Kennett, London Sittings, Bayley, J., 1 Campb. 408, n. (d) York v. Blott, 5 M. & S. 71; on the authority of Lockhart v. Graham, Str. 35. (e) Page v. Thomas, 6 M. & W. 733. (f) Hall v. Smith, 1 B. & C. 407. (g) Harrison v. Richardson, 1 M. & Rob. 504, Abinger, C. B. (h) Per Lord Mansfield, C. J., Heylyn v. Adamson, 2 Burr. 676. of the note the acceptor, and the indorsee the payee. From this resemblance between a bill of exchange and promissory note, it follows that many of the rules which are applicable to bills of exchange, hold also in the case of promissory notes (i). But the indorser does not stand in the situation of maker, relatively to his indorsee. Hence the indorsee cannot declare against his indorser as maker, even where the indorser has indorsed a note not payable or indorsed to him, and where consequently his indorsee cannot sue the original maker (j). (i) See De Berdt v. Atkinson, 2 H. Bl. 336; and ante, p. 336, 7. (j) Gwinnell v. Herbert, 5 A. & E. 436. CHAPTER X. CARRIERS. I. Of Common Carriers and their Responsibility, p. 395. III. Of the Lien of Carriers, p. 404. IV. By whom Actions against Common Carriers ought to be brought, p. 406. V. Of the Declaration, p. 409; and Pleading under New Rules, p. 412. VI. Evidence, p. 412. I. Of Common Carriers and their Responsibility. MASTERS (a) and owners of ships, hoymen, wharfingers (b), lightermen, barge owners (c), proprietors of waggons, stage coaches, &c., are denominated common carriers; and by the custom of the realm (d), that is, by the common law, are bound (1) to receive and carry the goods of the subject for a reasonable hire or reward (2), to take due care of them in their passage, to deliver 72. (a) Morse v. Slue, 2 Lev. 69. (b) Maving v. Todd, 1 Starkie's N. P. C. (c) Rich v. Kneeland, Cro. Jac. 330; Hob. 17, S. C. (d) 1 Roll. Abr. 2, (C) pl. 1. (1) An action on the case will lie against a common carrier for refusing to carry goods after an offer of his hire. Jackson v. Rogers, 2 Show. 327. (2) In an action against a common carrier for losing a box by negligence, a motion was made in arrest of judgment, because a particular sum was not mentioned in the declaration to be paid for hire, but a reasonable reward only; the declaration was holden to be well enough, for, perhaps, there was not any agreement for a sum certain, yet as in such case the carrier may maintain a quantum meruit, he is equally liable, as where there is |