XI. Of the Declaration, p. 412; Pleadings, p. 412; Evidence, p. 412; Conclusion, p. 414.

THE usual remedy on a promissory note is an action of assumpsit. Under the new rules, concise forms are given, adapted to the different parties, to which the reader is referred.

To action of assumpsit by A., B., and C., against D. (y), as one of the indorsers of a promissory note drawn by E., in favour of C., D., (and himself) E., then in partnership, and by them indorsed to A., B., and C. defendant pleaded in bar, that C., one of the plaintiffs, was liable as an indorser, together with D. On special demurrer, the plea was holden to be good; Lord Eldon, C. J., observing, that the subject of this plea could not have been pleaded 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 (z) 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 (a), or that it is in the hands of the defendant, and that he has had notice to produce it (b). 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

(y) Mainwaring v. Newman, 2 Bos. &

Pul. 120.

(z) 27 Geo. III. B. R. 2 Bos. & Pul. 124, n. (e), cited in Rose v. Poulton, 2 B.

& Ad. 826.

(a) Lord Raym. 731.
(b) 2 Bos. & Pul. 39.

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 (c); if the place of payment be mentioned in the margin or at the foot of the note (d). 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 (e). A. being in insolvent circumstances (f), 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 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 (g) to have been written at the time they bear date, until contradicted. The defendant may show either that there was no consideration for the note, or that the consideration has failed (h). 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 (i); nor a parol agreement that payment shall not be demanded (k) 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 (1), that, at the time of making it, it was agreed that it should not be payable until after the

(c) Nicholls v. Bowes, 2 Campb. 498; Williams v. Waring, 10 B. & C. 2.

(d) Price v. Mitchell, 4 Campb, 200. (e) Ord v. Portal, 3 Campb. 239. (f) Nicholson v. Gouthit, 2 H. Bl. 609. (g) Smith v. Battens, 1 M. & Rob. 341. (h) Per Tindal, C. J., Abbott v. Hendricks, 1 M. & Gr. 794; 2 Scott's N. R. 183; recognizing Foster v. Jolly, 1 Cr. M. & R.

703; 5 Tyrwh. 239.

(i) Hoare v. Graham, 3 Campb. 57. (k) 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; Tyrw. 239. (1) Woodbridge v. Spooner, 3 B. & A,

233.

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 (m), 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 (n), that evidence tendered by defendant 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. Where a promissory note, beginning, "I promise to pay," was signed by one member of a firm for himself and partners; it was holden (o), 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 (p).

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 (q), 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 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 (r). 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 (s).

(m) Barough v. White, 4 B. & C. 325. (n) Phillips v. Cole, 10 A. & E. 106. (0) Hall v. Smith, 1 B. & C. 407. (p) Harrison v. Richardson, 1 M. & Rob. 504, Abinger, C. B.

(q) Per Lord Mansfield, C. J., Heylyn

v. Adamson, 2 Burr. 676.

(r) See De Berdt v. Atkinson, 2 H. Bl. 336; and ante, p. 357.

(s) Gwinnell v. Herbert, 5 A. & E. 436. See Burmester v. Hogarth, 11 M. & W. 97.

CHAPTER X.

CARRIERS.

I. Of Common Carriers, and their Responsibility, p. 415.
II. Of the Stat. 11 Geo. IV. and 1 Will. IV. c. 68, limiting the
Responsibility of Carriers by Land, as to the Loss of

Parcels of a certain Description.
53 Geo. III. c. 159, p. 420.

III. Of the Lien of Carriers, p. 425.

Stat. 7 Geo. II. c. 15;

IV. By whom Actions against Common Carriers ought to be brought, p. 427.

V. Of the Declaration, p. 429; and Pleading under New Rules, p. 433.

VI. Evidence, p. 433.

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), (a) Morse v. Slue, 2 Lev. 69. (c) Rich v. Kneeland, Cro. Jac. 330; Hob. 17, S. C. (d) 1 Roll. Abr. 2, (C) pl. 1.

72.

Starbie's N. P. C.

(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; and see post, p. 429, 430.

(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 an express agreement for a particular sum. Bastard v. Bastard, 2 Show. 81. Agreed also in Lovett v. Hobbs, 2 Show. 129.

to take due care of them in their passage, to deliver them (e) safely (3), and in the same condition as when they were received; or in default thereof to make compensation to the owner for any loss or damage which happens while the goods are in their custody, except such loss or damage as arises from the act of God (4), as storms, tempests, and the like; or of the enemies of the King. Carriers are, generally, answerable for the honesty of their servants: if, however, the plaintiff's own conduct, in full knowledge of the circumstances, be such as to lead to the loss; if he afford undue temptation and facility to the crime of the servant, he can maintain no action (f) for a loss thus occasioned by his own fault.

In an action brought against a common carrier by water (g), charging the defendant with negligence; it was holden to be no defence that the ship was tight, when the goods were placed on (e) Per Popham, C. J., Owen, 57. (f) Bradley v. Waterhouse, M. &

Malk. 154.

(g) Dale v. Hall, 1 Wils. 281.

(3) In Golden v. Manning and another, 2 Bl. Rep. 916, where an action was brought against carriers for not delivering goods within a reasonable time, the question was agitated whether it was the duty of carriers to deliver as well as carry goods. The court declined giving any opinion on the general question, conceiving that, under the special circumstances of the case then before them, the defendants were liable, because it appeared that their general course of trade was to deliver goods at the houses to which they were directed; that they received a premium, and kept a servant, for that special purpose; and that they must be understood to have contracted to carry the goods in question, on the same terms, and in the same manner, that they carried the goods of other persons. Gould, J., expressed an opinion, that all carriers were bound to give notice of the arrival of goods to the persons to whom they were consigned, whether bound to deliver or not. In Hyde v. The Trent and Mersey Navigation Company, 5 T.R. 396, the general question, whether a carrier was bound to deliver the goods to the person to whom they are directed, was again agitated; Ashhurst, Buller, and Grose, Js., were of opinion that a carrier was so bound; but Kenyon, C.J., appears to have inclined to the contrary opinion. The special circumstances of the case (which see, post, p. 417,) rendered it unnecessary for the court to decide the general question.

(4) The plaintiff put goods on board the hoy of the defendant, who was a common carrier: coming through bridge, by a sudden gust of wind, the hoy sunk and the goods were spoiled. Pratt, C. J., held the defendant not answerable, the damage having been occasioned by the act of God. For though the defendant ought not to have ventured to shoot the bridge, if the general bent of the weather had been tempestuous, yet this being only a sudden gust of wind had entirely varied the case. The plaintiff's counsel having offered some evidence, that if the hoy had been in a better condition it would not have sunk, the Chief Justice said that a carrier was not obliged to have a new carriage for every journey; it was sufficient, if he provided one which, without any extraordinary accident, (such as this was,) would probably perform the journey. Amies v. Stevens, Str. 128.