And a defendant having pleaded it was not precluded from afterwards resorting to a court of equity.(n)

A plaintiff might formerly, where it was necessary, file a bill of discovery in aid of an action on a bill, or of an action relating to the proceeds of bills.(0) But the necessity for this can no longer arise, as in all causes in any of the superior courts either party may interrogate the other on oath, upon any matter as to which discovery may be sought.(p)

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*If the defendant in equity were interrogated as to the consideration for the bill, he must have answered not only as to the consideration given by himself, but as to that given by other parties to his knowledge. (q) No bill could be filed for discovery if it charged the defendant with a crime.(r)

But the former gaming act, 9 Anne, c. 14, s. 3,(8) and the stock jobbing act, 7 Geo. 2, c. 8, s. 2,(t) deprived defendants of this protection in matters to which those acts related.(u)

(n) Evans v. Bremridge, 2 Jur., New Series 134; 25 L. J., Chan. 334, s. c. ; Prothero v. Phelps, 23 L. J., Chan. 105. But see Terrell v. Higgs, 26 L. J., Chan. 837.

(0) See Thomas v. Taylor, 3 Y. & C. 255; Wilkinson v. Leaugier, 2 You. & C. 366; or of a defence to an action.

(p) 17 & 18 Vict. c. 125, s. 51. See Whateley v. Crowter, 5 E. & B. 709; and Ord. XXXI. r. 1. Either party may by order without affidavit have a discovery on oath of the documents relating to any matters in question that are or have been in the possession of the opposite side: r. 12. Interrogatories, it seems, run the risk of being struck out if delivered before the statement of defence: Mercier v. Cotton, L. R., 1 Q. B. Div. 442. The rule seems to be different in Chancery: Harbord v. Monk, 9 Chan. Div. 616.

(q) Glengall v. Edwards, 2 You. & Col. 125; and see Culverhouse v. Alexander, 2 You. & Col. 218.

(r) 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; Allhusen v. Labouchere, L. R., 3 Q. B. Div. 654.

(8) Now repealed by 8 & 9 Vict. c. 109.

(t) Made perpetual by 10 Geo. 2, c. 8; but repealed by 23 & 24 Vict. c. 28. (u) See Wilkinson v. Leaugier, 2 You. & Col. 366; Bullock v. Richardson, 14 Vesey 378; Rawlings v. Hall, 1 C. & P. 11 (12 E. C. L. R.); Thomas v. Newton, 2 C. & P. 606 (12 E. C. L. R.).

THE common law procedure acts, 1852 and 1854, introduced great and numerous changes in pleading, and the acts of 1873 and 1875 have introduced others hardly less important.

Declarations in an action are now superseded, and their place is taken partly by the indorsement on the writ, and partly by the statement of claim, (a) which latter must contain all the material facts on which the party relies, in separate paragraphs numbered consecutively, and also a specific statement of the relief claimed, whether simply, in the alternative, or generally.(6)

(a) Ords. XIX. and XXI. It is not necessary in all cases that there should be a statement of claim at all, for the defendant may dispense with one; or the plaintiff may, when the writ is specially indorsed, substitute a notice to the effect that his claim sufficiently appears from the indorsement. Ord. XXI. r. 4. Pleadings containing over ten folios must be printed; those less may be either printed or written. Ord. XIX. r. 5; R. S. C. June, 1876,

r. 9.

(b) Before the C. L. P. A. 1852, the declaration on a bill or note might be framed either in debt or assumpsit, but that act practically abolished the distinction. It has been held insufficient in a declaration to describe the drawers as "certain persons using the name:" Ball v. Gordon, 9 M. & W. 345; but see Smith v. Ball, 9 Q. B. 361 (58 E. C. L. R.); Bass v. Clive, 4 Camp. 78; 4 M. & S. 13; Schultz v. Astley, 7 C. & P. 99 (32 E. C. L. R.); 2 Bing. N.

*The character in which the plaintiff sues, as executor or

administrator, or trustee, or public officer, must appear [*424]

from the indorsement on the writ.(c)

In a writ under the bills of exchange act, the bill or note is set out in full in the special indorsement, and the statement of claim need only give its effect, (d) coupled with the necessary averments of indorsement or delivery, and that the bill is overdue, (e) and, when the action is not against the party primarily liable, with aver

C. 544 (29 E. C. L. R.); 2 Scott 815. In an action against the acceptor of a bill drawn by a firm, it was a sufficient description of the drawers to say that certain persons under the name, style and firm made their bill of exchange: Tigar v. Gordon, 9 M. & W. 347. A declaration that A. B. drew a bill requiring the defendant to pay to the drawer's order without again naming him was good: Knill v. Stockdale, 6 M. & W. 478; or to his order, the word his referring to the drawer: Spyer v. Thelwell, 2 C., M. & R. 692; 4 Dowl. 509. Where the names of any of the parties appeared on the bill by a contraction or by the initial only, it was sufficient so to describe them in the declaration: 3 & 4 Will. 4, c. 42, s. 12; but it must appear from the count that they were so described in the instrument itself: Levy v. Webb, 9 Q. B. 427 (58 E. C. L. R.); Gatty v. Field, Ibid.; Esdaile v. Maclean, 15 M. & W. 277; or the declaration was (before the common law procedure act, 1852) specially demurrable: Miller v. Hay, 3 Ex. 14; Turner v. Fitt, 3 C. B. 701 (54 E. C. L. R.), unless the full Christian name could not be discovered: Lomax v. Landells, 6 C. B. 583 (60 E. C. L. R.).

(c) Ord. III. r. 4; and Appendix A, Part II. s. 8. In a declaration by the public officer of a bank established under 7 Geo. 4, c. 46, it was sufficient to describe the plaintiff as a public officer duly appointed: Spiller v. Johnson, 6 M. & W. 570; Christie v. Peart, 7 M. & W. 491.

(d) Ord. XIX. r. 24. The declaration might either set it out in hæc verba, or give its legal effect, except in cases where that would mislead: Kearney v. King, 2 B. & A. 301 (22 E. C. L. R.); Sprowle v. Legge, 1 B. & C. 16 (8 E. C. L. R.); 2 D. & R. 15; Taylor v. Booth, 1 C. & P. 286 (12 E. C. L. R.) ; Harrington v. M'Morris, 5 Taunt. 228 (1 E. C. L. R.); 1 Marsh. 33; Simmonds v. Parminter, 1 Wils. 185; 4 Bro. P. C. 604; Stevenson v. Oliver, 8 M. & W. 234. If the bill were in a foreign language it might be set out in English: Attorney-General v. Valabreque, Wightw. 9. It was neither necessary nor safe to aver that the instrument bore date on a certain day, for such an averment, if incorrect, being matter of description, would be a variance: Anon. 2 Camp. 308, n. ; unless amended. The bill should be stated to be due; now due meant at date of writ: Owen v. Waters, 2 M. & W. 91.

(e) Formerly if a bill or note were not due the objection could be raised under the ordinary traverse of acceptance, drawing or indorsement: Hinton v. Duff, 31 L. J., C. P. 199; 11 C. B., N. S. 724 (103 E. C. L. R.); but query now whether it must not be denied specifically. Ord. XIX. rr. 17, 20.

ments of due presentment for acceptance or payment, and of notice of dishonor, or of the facts excusing either or both of these.(f)' *When a bill is made payable at usance, the length of the usance should be stated.(g)

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For the proper mode of stating the acceptance of a bill of exchance in pleading, and presentment for payment and notice of dishonor, the reader is referred to the chapters on those subjects.

The omission to state notice of dishonor is not cured by verdict.(h)

It was formerly considered doubtful (i) whether such facts as dis

(f) See post, p. 425. In a declaration on a joint and several promissory note it was not improper to state that the makers jointly or separately promised to pay: Rees v. Abbott, Cowp. 832; Butler v. Malissey, 1 Stra. 76; Neale v. Ovington, 2 Lord Raymond 1544; and see now Ord. XVI. r. 3. Where an instrument has been made payable to husband and wife, and the husband sued upon it alone, it must have been stated in the declaration to have been made payable to the husband: Ankerstein v. Clark, 4 T. R. 616. A bill drawn upon A., B. and C. might be described as drawn upon A. and B.: Evans &. Lewis, 1 Wms. Saund. 291, d.; Mountstephen v. Brooke, 1 B. & Ald. 224; Wilson v. Reddall, Gow 161. Where a bill drawn in favor of payee or order was declared on as payable to payee, a replication supplying the defect was held no departure: Hooper v. Marshall, L. R., 5 C. P. 5 ; 39 L. J. 14. (g) Buckley v. Campbell, 1 Salk. 131; Meggadow v. Holt, 12 Mod. 15; 1 Show. 317.

(h) Rushton v. Aspinall, Doug. 654. Query whether not amendable. (i) Cory v. Scott, 3 B. & Ald. 619 (5 E. C. L. R.); Bayley on Bills, 5th ed. 406.

1 A note may be declared on according to its legal effect. Thus, in an action by the payee, it is not necessary to set out that it was drawn to order or bearer: Matlack v. Paufoy, 18 Arkansas 492. It is no variance to declare on a joint and several note as a joint note: Pogue v. Clark, 25 Illinois 333. A declaration against one of several makers of a joint and several promissory note need not aver that the other makers executed the note: Morgan v. Lawrenceburg Ins. Co., 3 Indiana 285. The holder of an accommodation note, payable to the order of a third person, but not indorsed by him, may, if he has advanced money on it, declare on it as made to himself or as payable to bearer: Hunt v. Aldrich, 7 Foster 31.

As to form and requisites of declaration on a note or bill, see Blackwell v. Reid, 41 Miss. 102; Hardin v. Pilan, Ibid. 112; Streeter v. Streeter, 43 Illinois 155; Montague v. Church School District, 34 N. Jers. (Law) 218; Archer v. Claflin, 31 Illinois 306.

pense with presentment, protest or notice of dishonor could or could not be given in evidence in support of the common allegations of presentment, protest or notice in the declaration. It is now, however, clear that facts dispensing with presentment or notice, such as absence of effects in the drawee's hands, or a countermand of payment by the drawer, must be especially alleged; and that proof of these facts is inadequate to the support of a positive averment of presentment, protest or notice.(k) A promise to pay, however, is still admissible under the common averments as primâ facie evidence that the preliminaries essential to the maintenance of the action, such as presentment and notice, have been satisfied.(7) But if it should distinctly appear in evidence that there [*426] has been a neglect to present, and that the defendant, being aware of the omission, afterwards promised to pay, so that the promise is used as a waiver, it is conceived that that fact must be specially alleged. It may be otherwise where there has been a neglect to give notice of dishonor in due time, and a promise to pay, with notice of the omission, has been afterwards made before action brought, for then the defendant has, in the words of the allegation, had notice of the dishonor, which notice, under the circumstances, may be deemed as against him due notice. But the

(k) Burgh v. Legge, 5 M. & W. 418; see Terry v. Parker, 6 Ad. & E. 502 (33 E. C. L. R.); 1 N. & P. 752, s. c.; Carter v. Flower, 16 M. & W. 749; Wirth v. Austin, L. R., 10 C. P. 689; 44 L. J. But the power of amendment in such cases is liberally exercised: Cordery v. Colville, 32 L. J., C. P. 210; 14 C. B., N. S. 724 (108 E. C. L. R.).

(7) See Hopley v. Dufresne, 15 East 275; Lundie v. Robertson, 7 East 231; 3 Smith 225; Hicks v. Duke of Beaufort, 4 Bing. N. C. 229 (33 E. C. L. R.); 5 Scott 593; Metcalfe v. Richardson, 11 C. B. 1011 (73 E. C. L. R.). See the chapter on PRESENTMENT FOR PAYMENT.

'Facts which excuse demand and notice may be proved in an action against an indorser, under a declaration in the usual form: Kennon v. McRea, 7 Porter 175. Contra: Curtis v. State Bank, 6 Blackford 312; Windham Bank v. Norton, 22 Connecticut 213. In an action against an indorser, proof of a waiver of notice will support an allegation of actual notice: Taunton Bank v. Richardson, 5 Pick. 436. Under an averment of notice plaintiff may show what excuses it: Purchase v. Mattison, 6 Duer. 587. When the facts are such as dispense with an actual demand they must be averred in the declaration: Baumgardner v. Reeves, 11 Casey 250. Averment of presentment and non-payment is indispensable in an action against an indorser: Anderson v. Yell, 15 Arkansas 9.