specified, was by the said draft or order appointed to be made, after the making of the said draft or order, and before the payment of the said sum of money therein specified, to wit, on, &c. at, &c. duly transferred, assigned and delivered the said draft or order to the said A. B., who thereby then and there became and was, and from thence hitherto hath been, and still is, the lawful bearer thereof, and entitled to the said sum of money therein specified.
No. XVIII.-NOTICE TO PROVE CONSIDERATION. (b)
Between A. B., plaintiff, and
C. D. defendant.
I hereby give you notice, that on the trial of this cause the above-named defendant will insist and give in evidence, that the supposed bill of exchange (or promissory note) mentioned in the declaration in this cause, was obtained from the said defendant (or from G. H.), without legal or sufficient consideration and by undue means, and that the said defendant is not liable to pay the same; and I do hereby further give you notice and require you on the said trial to prove the consideration given by the said plaintiff, and every other party for the said bill of exchange, and when such consideration was given and paid, and in what manner, and the person or persons by and from whom the same bill of exchange was obtained by the said plaintiff or by any other person, and the time when the said plaintiff and any other person became the holder thereof; and I do hereby further give you notice, and require you on the said trial to produce and give in evidence all letters and copies of letters and books of account in any way relating to the said bill of exchange, particularly a certain letter dated, &c.
Yours, &c. L. M.
Attorney for the said Defendant.
To Mr. A. B. the above-named
(b) See ante, p. 123. Chitty, 512. 7th ed.
ABATEMENT, plea of misnomer of party to suit, 265; of
non-joinder, 265.
ABSCONDING of drawee of bill or maker of note equiva-
lant to dishonor, 147.
ACCEPTANCE. General points relating to, what is a ma-
terial alteration in, 38; how made by one of several
partners, 59; see Partners, by one partner in fraud of
the others, 61, 62; is primá facie evidence of assess,
104; presentment for, 141; general acceptance, present-
ment in case of, 147; special acceptance, presentment in
case of, 148.
Presentment, to whom, 146; forged acceptances, 243, see
Forgery; statement of acceptance in the declaration, 267;
what the acceptance admits, 280, 282.
By whom, drawee or agent, 170, 171; cannot be by two,
where bill is directed to one only, 171; agent accepting
bill drawn upon him in his own name personally liable,
171; by one of several persons, not partners, binds him-
self only, 171; where the bill is directed to no person but
to a particular place, 171.
At what time, 171; whether a bill can be accepted before it
is drawn, 171, 172, note 36; whether a person writing
an acceptance on a blank bill is liable, 172; bill may be
accepted after it is due, 172.
Form, verbal, 173; at common law, verbal acceptance
good, 173; not good in cases of inland bills by stat. 1 & 2
Geo. 4. c. 78, 173; still good in cases of foreign bills,
What amounts to good acceptance not on the bill, 173; a col-
lateral promise to accept a foreign bill is good, 174; though
the bill has not been taken on the credit of such pro-
mise, 174, 175; where such an acceptance is conditional
ACCEPTANCE-continued.
will not amount to a good collateral acceptance of a
foreign bill, 177; promise to accept made on executory
consideration, 177.
What amounts to a good acceptance on the bill, 177, note,
37; whether defacing the bill is an acceptance, 178,
What acts, where there is no express acceptance or promise to
accept, will amount to an acceptance, 178; whether re-
taining a bill operates as an acceptance, 178, 179, 180,
note, 38; request to A. to accept and draw on B., the
drawing on B. is not an acceptance, 180; marking a check
equivalent to acceptance, 180, 181.
Special acceptance at a particular place, 181; varying deci-
sions of K. B. and C. P., 181, 182, 183, 184; settled
by Rowe v. Young, that presentment must be averred and
proved against drawer or acceptor, 184; statute 1 & 2
Geo. 4. c. 78., 185; when a bill is payable in London,
&c. holder may demand a special acceptance, 186.
Conditional acceptance, 186; good, 186; but the holder may
refuse it, 187; if he takes it he should give notice to the
other parties, 187; Note 39; must not be declared on
as an absolute acceptance, though condition performed,
187; conditions should be expressed on the acceptance,
Acceptance varying from the terms of the bill, 187; drawee
bound by, 188; but holder should give notice to other
parties, 188; a refusal by holder to take such acceptance
will prevent him from afterwards resorting to it, 188;
holder may refuse it, 189.
Acceptance, supra protest, 189; note, 40; by drawee or third
person, 189; by more than one person,
189; whether the
holder can refuse such an acceptance, 189; inquiry should
be made why the drawee has refused, 190; protest must
be made before acceptance, 190.
Acceptance, supra protest, mode of, 190.
Acceptance, supra protest, liability of the acceptor, 190; in
the nature of a conditional acceptor to pay if drawee does
not, 191.
Remedy of the acceptor supra protest, 191; stands in the
place of the party from whose honor he acccepted, 191 ;
may sue the former acceptor, 192.
Cancellation of acceptance, 192; acceptance may be can-
celled before delivery, 192; cancellation by mistake does
not discharge the acceptor, 192; cancellation of the
name of the maker of a check by mistake no dis-
charge, 192.
ACCEPTOR. See Accommodation Acceptor. General points re-
lating to; is prima facie a debtor to the drawer, 1, 2; is
it must appear to have been performed, 175; what words
primarily liable, 2; note 2; there cannot be two acceptors
where a bill is directed to one person, 22; may prove
that a bill was made abroad and is therefore void, 29; may
render himself liable as such by adopting the act of third
person, who has accepted bills in his name, 44; cannot
set up infancy of drawer as a defence, 56; infant not
liable as, 57; giving time to, discharge of other parties,
74; and see Indulgence, Drawer, and Indorser; varying
the liability of, discharges other parties, 76; at what
place presentment must be made to him, 147 to 149; see
Presentment; liability of acceptor supra protest, 190; see
Acceptance; notice of dishonor to, not necessary, 199;
when justified in paying lost bill, 241; when guilty of neg-
ligence in paying forged bills, 242, 243, 244; staying pro-
ceedings in action against, 272; cannot set up forgery of
drawer's name, 280; nor of his own where he has re-
cognised his hand, 281, 282; what he admits by his
acceptance, 280, 282; competency of, 304.
Liability of, 83; not for re-exchange, 83; to pay forged bill,
83; to pay bill immediately on its becoming due, 84; to
pay interest, 310.
Liability of, how discharged, by release, 84; but not where bill
comes into hands of indorsee for value without notice, 84;
by waiver or renunciation, 84 to 87; not by holder, insol-
vent, omitting to include bill in schedule, 86; liability
suspended by taking substituted bill, 87; person taking
up accommodation bill to prevent proceedings against the
drawer, may sue the acceptor, 88; whether accommodation
acceptor is discharged by time given to the drawer, 89;
and note 16; whether neglect to present a bill will dis-
charge acceptor, 90; liability discharged by foreign bank-
ruptcy, &c. 91, 92; not by a cancellation of acceptance
by mistake, 192.
Presentment to, at what place, 147 to 149; see Present-
ACCEPTOR Supra Protest, liability of, 190; remedy of, 191;
proof in bankruptcy by, 326.
ACCIDENT, inevitable, excuses the presentment of a bill,
169, 270; whether it excuses want of notice of dishonor,
233; whether it excuses want of protest, 237.
ACCOMMODATION ACCEPTOR, giving time to, no dis-
charge of drawer, 81; liable to holder, who took bill with
notice of the accommodation, 83; when discharged by
waiver, 84; whether discharged by indulgence to drawer,
89, and note 16; may have either a special action of as-
sumpsit, or an action for money paid, 253; evidence in
ACCOMMODATION ACCEPTOR-continued.
action by, against drawer, 293; proof by, in bankruptcy,
328, 329.
ACCOMMODATION NOTE, maker of, not discharged by
release to payee, 77, 90; indorser of, discharged by time
given to maker, 74; does not pass to assignees of the party
accommodated, 138; set-off in bankruptcy, 344.
ACCOMMODATION BILL. See Consideration, and Accom-
modation Acceptor. When it is considered to be issued, 36,
37; drawer of accommodation bill considered the principal
debtor, 81; whether giving time to drawer of accommo-
dation bill discharges the acceptor, 89; notice to drawer
of, when not necessary, 221 to 228; see Notice of Disho-
nor; whether indorsee for value taking it after due, can re-
cover on it, 112; holder for value can recover only to the
amount of the value he has given, 104, 110; does not
pass to the assignees of the party accommodated, 128;
proveable, though no notice has been given, 321; proof
of accommodation bill in bankruptcy, 327; by the party
accommodating against the estate of the party accomo-
dated, 328; proof in cases of accommodation bills de-
posited as security, 338.
ACCOUNT STATEĎ, when bill or note may be given in evi-
dence under such a count, 13, 255; where note avoided by
a material alteration, may be given in evidence under,33;
infant cannot be sued on, 57.
ACKNOWLEDGMENT, to take a case out of the statute of
limitations, must be in writing, 298.
ACT OF BANKRUPTCY; denial to holder of bill, 319.
See Bankruptcy.
ACTION, form of, on bills and notes, 252; special assump-
sit, 252; when debt will lie, 252; or indebitatus assump-
sit, 252.
Common counts, 253; for money lent, when applicable, 253
for money paid, 253; for money had and received, 254;
on an account stated, 255.
Counts on the consideration, 256; when proper, 256, 257;
should be stated in particulars, 257.
By whom, 257.
Against whom, 257.
Affidavit to hold bail, 267.
Declaration, 262 to 272. See Declaration.
Inspection of the bill, 272.
Staying proceedings, 272.
Judgment by default, 273.
ADDRESS, see Direction.
ADMINISTRATOR. See Executor.
ADMISSION. See Promise to pay. Of handwriting by accep-
tor, precludes him from the defence of forgery, 83; by one
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