Declaration-notice.] In an action against the acceptor of a bill, whether generally or specially accepted, no notice of dishonor to the defendant need be averred. Smith v. Thatcher, 4 B. & A. 200. Treacher v. Hinton, 4 B. & 4. 413. ante, p. 199. Nor need notice to the maker of a note, payable at a particular place, be averred. Pearse v. Pemberthy, 3 Campb. 261. ante, p.200. But in all actions against the drawer of a bill or the indorser of a bill or note, notice of the dishonor to the defendant must be averred, and the omission of such averment is error, and not cured by verdict. Rushton v. Aspinall, Dougl. 654. 679. 4th ed. In an action against the drawer or indorser of a foreign bill, a protest must also be stated in the declaration; but the omission can only be taken advantage of by special demurrer. Salomons v. Stavely, cited Dougl. 684. (n.) 4th ed. Bayley, 327. An averment that the plaintiff protested or caused to be protested is improper, but is cured by pleading over. Witherley v. Sarsfield, 1 Show. 125.

Whether want of effects in the hands of the drawee, can be given in evidence under the general averment of notice in an action against the drawer, or whether it is necessary to aver the want of effects as an excuse for non-presentment, does not appear to have been decided. In the case of Cory v. Scott, 3 B. & A. 624., Mr. Justice Bayley says, "I am inclined to think that it is incumbent on the plaintiffs to allege in their declaration the want of effects, in order to excuse notice. If notice be averred to be given, it seems to me that it ought to be proved; and the proof of circumstances which excuse the giving of notice does not seem to me to be ad idem, with such an averment. Possibly, however, it might be considered that such circumstances would be evidence of notice, inasmuch as they would be evidence that the party knew that the bill would be dishonored." Mr. Justice Holroyd said, "I think that where a person draws on his own account, and at the same time knows that the bill, when presented, will be dishonored, the general allegation of notice would be sufficient." Bayley, 329. It is usual, however, to make a special averment. See Legge v. Thorpe, 12 East, 171. Orr v. Maginnis, 7 East, 359. Where no notice has been given, but after the bill has become due, the defendant, with knowledge of the fact, has paid part or promised to pay, evidence of such part payment or promise to pay, will support the general averment of notice or of a protest. Lundie v. Robertson, 7 East, 231. ante, p. 168. Gibbon v. Coggon, 2 Campb. 188. ante, p. 236. So where, in consequence of the residence of the party being unknown, notice has not been given for several weeks, yet, if the notice be good, it may be given in evidence under the common averment of notice. Firth v. Thrush, 8 B. & C. 387.

See

Declaration-promise.] In a declaration against the maker

of a note, Lowther v. Conyers, cited 1 Str. 224, or against the drawer of a bill, no actual promise need be stated, for the law will raise the promise upon the custom of merchants. Starke v. Cheesman, Carth. 509. 1 Salk. 128. S. C. Wegersloffe v. Keene, 1 Str. 224. And it seems that in no case is it necessary to state a promise. Bayley, 330. See Morris v. Norfolk, 1 Taunt. 213. In an action against the maker of a note, or the acceptor of a bill, the promise of the defendant is stated to be to pay according to the tenor and effect of the note or bill; in an action against the drawer of a bill or the indorser of a bill or note, the promise is stated to be to pay on request.

Inspection of the bill.] It is said that in an action on a bill of exchange or promissory note, on a special ground, if a special ground be laid, as that the demand is of long standing, and the defendant has no copy of the instrument, or that there is reason to suspect its being forged, &c., the court on motion, or a judge on summons, will make an order for the delivery of a copy of it to the defendant or his attorney, and that all proceedings in the action be in the mean time stayed. Tidd, 689, 8th ed. When a motion to this effect was made on the ground that the bill had come to the defendant's hands by fraud, which was directly negatived on the other side, the court of C. P. refused to grant the motion. Threlfall v. Webster, 1 Bingh. 161. 7 Moore, 559. S. C. And where a motion was made that a bill on which an action was brought should be impounded in the hands of the prothonotary, and the defendant be permitted to inspect it in order to see whether or not it was a forgery, the court of C. P. refused to grant a rule. Hildyard v. Smith, Bingh. 451. 8 Moore, 586. S. C.

Staying proceedings.] If separate actions are brought against the acceptor, drawer, and indorser of a bill of exchange, the court of King's Bench will stay proceedings against the drawer, or any of the indorsers, on payment of the bill and costs of that action, but not against the acceptor without payment of costs in all the actions. Smith v. Woodcock, 4 T. R. 691. Tidd, 586. 8th ed. But where there is an attachment against the sheriff, in an action against the acceptor, the sheriff will be relieved on payment of the costs in that action only. R. v. Sheriff of London, 2 B. & A. 192. And where there is reason to believe that the action against the drawer has been commenced for the sake of the costs, the court will stay proceedings against the acceptor on payment of the debt and his own costs. Hodson v. Green, 2 D. & R. 57. On motion to stay proceedings in an action on a promissory note, on an affidavit that the note was obtained without consideration, it being objected that the court would not interfere in this matter, which was proper for the trial of the cause, the court said it was often done on such

applications, if the other side did not contradict the assertion of the defendant; but when there were contradictory affidavits, the court would not interfere in this summary way. Turner v. Taylor, E. 23 G.3. K. B. Tidd, 573. 8th ed.

Judgment by default.] When the defendant has suffered judgment by default, it is not necessary to execute a writ of inquiry, but the court on motion will refer it to the proper officer to compute principal and interest, and will allow final judgment to be signed for this sum. Though formerly it was otherwise, this practice now prevails in the Exchequer, as well as in K. B. and C. P. Biggs v. Stewart, 4 Price, 134. The rule is confined to those cases in which it appears on the declaration that the action is brought on bills or notes. Osborne v. Noad, 8 T. R. 648. And when the bill is for foreign money, the court will not refer it to the master. Maunsell v. Lord Massarene, 5 T. R. 87. See Stoveld v. Brewin, 2 B. & A. 118. 2 Chitty Rep. 233. So where there are charges and expenses to be ascertained, Goldsmith v. Taite, 2 B. & P. 55, or re-exchange Napier v. Schneider, 12 East, 420.

When a writ of inquiry is executed on a judgment by default, it is not necessary to give any evidence, or even to produce the bill, except for the purpose of seeing whether any part of it is paid. Green v. Herne, 3 T. R. 301. Mills v. Lyne, B. R. H. 26 G. 3. Bayley, 385. It is said, that if, on the execution of the writ of inquiry, the bill or note is not produced, the plaintiff is entitled to nominal damages. Per Abbott, C. J. Marshall v. Griffin, Ry. & Moo.41.

274

CHAPTER XII.

OF THE EVIDENCE.

Production of the instrument.

Variances.

Identity.

Admissibility of agreement to control the operation of a bill. Evidence in the various actions.

Payee v. Acceptor.

Indorsee v. Acceptor.

What the acceptance admits.

When the plaintiffs are partners, or sue in a par-
ticular capacity.

What indorsements must be proved, and how.
Promise to pay, dispensing with proof of indorse-

ments.

Admission of indorser.

Payee v. Drawer.

Drawing of the bill.

Presentment.

Notice.

Contents of, how proved.
Time of giving, how proved
When excused.

Protest.

Indorsee v. Indorser.

Admission of the drawing, and prior indorsements. Accommodation Acceptor v. Drawer.

Payee v. Maker of Note.

Indorsee v. Maker of Note.

Indorsee v. Indorser of Note.

In an action on a bill or note, the plaintiff must in general produce the instrument on which he sues, and prove all the material allegations in his declaration.

Production of the instrument.] In general it is necessary to produce the bill or note upon which the plaintiff sues, or to shew that it has been destroyed. Thus, where it appeared that the defendant had torn his own note of hand, a copy of it was admitted as good evidence. Anon. 1 Lord Raym. 731. And, where the bill on which the plaintiff sued was in the possession of the defendant, and it appeared that he had admitted that he owed the money due upon the bill, Abbott, C. J. ruled, that such an admission might be given in evidence, under the common counts, without a notice to produce the bill. Fryer v. Brown, R. & M. 145. But, in general, when the instrument upon which the plaintiff sues is in the possession of the defendant, notice to produce it must be given; Smith v. M'Clure, 5 East, 477; unless in cases where, from the nature of the action, the defendant must know that the plaintiff means to charge him with the possession of the instrument, as in trover for a bill or note, in which case a notice to produce is unnecessary. How v. Hall, 14 East, 274. Collings v. Treweek, 6 B. & C. 399. Cowan v. Abrahams, 1 Esp. 50. contra. The destruction of the instrument must be satisfactorily proved, before the secondary evidence can be admitted, and evidence must also be given of the genuineness of the original instrument. Goodies v. Lake, 1 Atk. 446. The cases in which a person who has lost a bill or note has been allowed to recover, without production of the instrument will be stated hereafter. Post, Chapter XV.

Variances.] The bill or note, as described in the declaration, must be supported by that produced in evidence, or the variance, if material, will be fatal, unless it can be amended at the trial, under statute 9 Geo. 4. c. 15. by which the judge may cause the record to be amended when any variance shall appear between any matter in writing or in print, produced in evidence, and the recital, or setting forth thereof upon the record.

With regard to the date, it has been stated, that where a bill or note is described as bearing date on a certain day, that day is material, and if misdescribed, the variance is fatal. 2 Campb.