ment might then have been evidence of money lent by the holder to B. or of an account stated between them.(h) As between banker and customer a check paid by the banker is no proof of money lent or advanced by the banker to the customer, but prima facie it shows a return of money previously deposited by the customer with the banker. A check not presented has been held not to be evidence of money lent by the drawer to the payee.(i) In an action by the payee against the maker of a note or acceptor of a bill, the plaintiff must, if the making or acceptance be in issue, prove the handwriting(k) of the person whose name appears as the maker of the note or acceptor of the bill. In an action by the indorsee against a maker or acceptor, the plaintiff must first prove the making of the note or the acceptance of the bill. We have already seen that the acceptance admits the drawing. Then the indorsement must be proven, and if it be special, it must appear that the indorsee is the person described in it. If the instrument be payable to bearer, or indorsed in blank, it is of course unnecessary to allege or prove() a subsequent indorse ment.1 (h) Rogers v. Flook, Bristol Summer Assizes, 1866. (i) Pearce v. Davis, 1 M. & Rob. 365. (k) By the common law procedure act, 1852, s. 117, either party may call on the other party by notice to admit any document saving all just exceptions, and in case of refusal or neglect to admit, the costs of proving the document shall be paid by the party neglecting or refusing, unless at the trial the judge shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice shall be given, except in cases where the omission to give the notice is in the opinion of the master a saving of expense. And see R. 30, H. T. 1853. And the rule under the new Ord. XXXII. r. 2, is the same in substance. By Ord. XXII. r. 4, in case of a frivolous or wanton traverse of any allegation, the court may make such order as may seen just with regard to the extra costs so occasioned. (1) Unless averred in the declaration. See chapter on TRANsfer. 1 In an action by the indorser against the indorsee it is not necessary to prove execution by the maker: Bestor v. Phelps, 17 Illinois 592. Proof of defendant's signature to a joint and several note is sufficient without showing A promise to pay, or an offer to renew a bill or note, made to the indorsee after it is due, is an admission of the *holder's title, [*439] and will make the proof of indorsement unnecessary. (m) But the admission of an indorser is evidence against him only, not against other parties. (n)1 In an action by an indorsee against an indorser, it is necessary, first, to prove the indorser's signature, which admits the ability and signature of every antecedent party; (o) then a due presentment(p) for payment or acceptance and dishonor; and lastly, notice of dishonor, or, if the record admit of such proof, a competent excuse for neglecting to give it. An indorsement is evidence in this action under the common counts.(q) A general receipt on the back of a bill is not of itself evidence (m) Hankey v. Wilson, Sayer 223; Bosanquet v. Anderson, 6 Esp. 43; Sidford v. Chambers, 1 Stark. 326 (2 E. C. L. R.); Jones v. Morgan, 2 Camp. 474. (n) Hemings v. Robinson, Barnes 436. (0) Critchlow v. Parry, 2 Camp. 182; Chaters v. Bell, 4 Esp. 210; Lambert v. Pack, 1 Salk. 127; Macgregor v. Rhodes, 25 L. J., Q. B. 318; 6 E. & B. 266 (88 E. C. L. R.), s. c. (p) I. e., if denied by the pleas. (q) Kessebower v. Tims, Bayley, 6th ed.; and see ante. its execution by the rest: Chandler v. Lawrence, 3 Michigan 261. The indorsee of a note payable to the order of a corporation must prove that the officer indorsing it had authority to do so: Marine Bank v. Clements, 3 Bosworth 600. 1 Declarations of a former holder of a bill transferred to the plaintiff after dishonor are competent to show that before such transfer the defendants were discharged from liability: Hollister v. Reznor, 9 Ohio 1. An admission by one joint drawer, even though an accommodation drawer, of his liability on the bill, thus impliedly admitting demand and notice, binds his co-contractors: Dickerson v. Turner, 12 Indiana 123. Under the averment in a declaration of due demand and notice, the declarations of the indorser acknowledg ing liability are evidence: Myers v. Standart, 11 Ohio (N. S.) 29. A refusal to pay a bill because another person should pay part is admissible as an admission of the authority of the agent who accepted it: May v. Hewitt, 33 Alabama 161. It is not incumbent on the holder to prove the signatures of the drawer and first indorser in order to recover against a subsequent indorser: Ricard v. Harrison, 19 Louis. Ann. 181. of the payment by the drawer, though he produces the bill;(r) for "prima facie," says Lord Kenyon, "the receipt on the back imports that it was paid by the acceptor." But this doctrine must be taken with the qualification that slight circumstances will show the contrary.(8) Parol evidence is admissible to explain the receipt.(t) An entry or statement by a person since deceased against his own pecuniary interest, whenever made, is evidence between third persons of the fact which it records. (u) And a minute in writing by a person since deceased, made in the ordinary course of his business and contemporaneous with the fact it records, is also evidence.(x)1 There were several statutes enabling a judge to cure a variance by amending the record at the trial: the 9 Geo. 4, c. 15; the 3 & 4 Will. 4, c. 42, s. 23; the 15 & 16 Vict. *c. 76, s. 222; and the 17 & 18 Vict. c. 125, s. 96, which latter statutes [*440] enabled a court or judge to amend in almost any case, imposing such terms as should best further justice.(y) They even went further, and obliged not even the court at nisi prius but in banc, and even a court of error, to make all amendments necessary to determine the real question in controversy. The court or a judge by the new rules are to make, at any stage of the proceedings, all such amendments as may be necessary for determining the real question in controversy.(z) (r) Scholey v. Walsby, Peake 24. (s) See Phillips v. Warren, 14 M. & W. 379. (t) Graves v. Key, 3 B. & Ad. 313 (23 E. C. L. R.). (u) Higham v. Ridgway, 1 East 109. See the notes to this case in 2 Smith's Lead. Ca. 193. But as to memoranda on the bill or note itself, see the chapter on the STATUTE OF LIMITATIONS. (x) Price v. Earl of Torrington, 1 Salk. 285. See the notes to 1 Smith's Lead. Ca. 139, and Eastern Union Railway Company v. Symonds, 5 Exch. 237. (y) See Wilkin v. Reed, 15 C. B. 192 (80 E. C. L. R.); Ritchie v. Van Gelder, 9 Exch. 762. (z) Ord. XXVII. r. 1. 1 Memoranda made by clerk of notary, who has no memory of the fact, verified by his oath, admissible to prove presentment and notice: Cole v. Jessup, 10 New York 96; Taylor v. Stringer, 1 Hilton 377. The mode of giving facts in evidence is practically unaltered under the judicature acts and orders. (a) When the parties have consented, or a judge has made an order to that effect, any partic ular fact or facts may be proved by affidavit, (b) or a witness' evidence taken on interrogatories. A deponent may be summoned to appear for cross-examination at the trial by serving a notice to that effect within fourteen days, and unless he so appear his affidavit cannot be used except by special leave. (c) As we have already seen, every material fact not traversed either directly or by implication is taken to be admitted ; (d) but still special admissions may be made of facts or documents by express notice in writing or otherwise.(e) By virtue of a recent statute entries in bankers' books may be proved by examined copies,(ƒ) and the books themselves are primâ facie evidence if verified by affidavit. (a) Ord. XXXVII. (b) Ord. XXXVIII. r. 1; Ord. XXXVII. r. 1, which must be printed r. 5. (c) Ord. XXXVIII. r. 4. (d) Ord. XIX. r. 17, see p. 424. (e) Ord. XXXII. rr. 1, 2. (f) 39 & 40 Vict. c. 48, ss. 3-5. |