9 Geo. IV. c. 15, and the stat. 3 & 4 Will. IV. c. 42, s. 23: and now, by the statutes 15 & 16 Vict. c. 76, s. 222, and 17 & 18 Vict. c. 125, s. 96, power is given to make all amendments which may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties (c). Where the declaration was on a promissory note for 250l. made by the defendant, dated the 9th of November, 1838, payable to plaintiff or order on demand: plea, that defendant did not make the note; and the proof was of a joint and several promissory note for 2501., made by defendant and his wife, dated the 6th of November, 1837, payable 12 months after date, and no proof was given of any other note between the parties; this was considered to be a variance properly amended at Ñ. P. under 3 & 4 Will. IV. c. 42, s. 23 (d). A declaration in assumpsit by indorsee against acceptor, after stating nonpayment of the bill when due, alleged that defendant afterwards promised to pay plaintiff the said bill according to the tenor and effect of his said acceptance. This was held sufficient on special demurrer, for per Cur.: after the dishonour of a bill, it is payable on request; a promise therefore by acceptor, after the bill is due, to pay it according to the tenor and effect of his acceptance, is a promise to pay on request (e). Where the acceptance was written before the bill was drawn, the declaration described the transaction in the usual order of time, viz. the drawing first, and then the acceptance; this was held not to be a variance (f). And so with respect to an indorsement, whether made before (g) bill drawn, or after (h) bill became due. By stat. 1 & 2 Geo. IV. c. 78, s. 1, if any person shall accept a bill payable at the house of a banker, or other place, without further expression in his acceptance, such acceptance shall be deemed, to all intents and purposes, a general acceptance of such bill, and such a bill may, in an action against it, be declared upon as made payable at that place; although, under this statute, such an acceptance amounts to a general acceptance. Blake v. Beaumont, 4 M. & Gr. 7; S. C. Blake v. Bowman, 4 Scott's N. R. 617. But if the acceptor shall, in his acceptance, express that he accepts the bill payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed to be, to all intents and purposes, a qualified acceptance, and the acceptor shall not be liable to pay the said bill, except in default of payment, when such payment shall have been duly demanded at such banker's house or other place. Since this statute it has been adjudged, that the holder of a bill accepted, payable at a banker's, but omitting the words "there only," is not bound to present it at the banker's, and consequently is not guilty of laches, if he omits to do so; and may (c) See Leigh v. Baker, 26 L. J., C. P. 220. (d) Beckett v. Dutton, 7 M. & W. 157. (e) Christie v. Peart, 7 M. & W. 491. (f) Molloy v. Delves, 7 Bingh. 428; 5 M. & P. 275. (g) Russel v. Langstaffe, Doug. 514. still recover against the acceptor, in the event of the banker's failure, although a considerable time, e. g. three weeks, have elapsed since the bill became due, during all which time the acceptor had funds in the banker's hands, exceeding the amount of the bill (i). In such case no averment or proof of presentment for payment at the place mentioned is necessary (k). But in an action against the drawer of a bill (payable at a particular place, where the drawee accepts it payable at that place), on the ground of nonpayment by the acceptor, it is necessary to prove a presentment to the acceptor at that place; for the statute neither intended to alter, nor has it altered, the liability of drawers; but is confined in its operation to acceptors only (1). A conditional acceptance cannot be declared on as an absolute acceptance, even after condition performed (m). In action on a bill against an acceptor for the honour of the drawer, it must be alleged, that when the bill arrived at maturity, it was presented to the drawee for payment. And this rule holds whether the bill be a bill payable after date (n) or after sight (o). Where a bill has been accepted by the drawee, if another person accepts it also for the purpose of guaranteeing the first acceptor, the second acceptance is merely a collateral undertaking, and must be declared on as such; for there is not any custom of merchants authorizing a series of acceptors (p). Facts dispensing with presentment or notice must be specially averred in the declaration. In Burgh v. Legge, Parke, B., says, "I always thought that if presentment or notice was to be excused on the ground of want of effects, &c., that fact ought to be stated in the declaration" (q). In Heys v. Heseltine and another (r), where it was averred that the defendants accepted the bill, and the acceptance was by an agent thus, "for Heseltine and Co., John Wilson:" Lord Ellenborough was of opinion, that the evidence supported the declaration: observing, that if the defendants accepted the bill by an agent, in contemplation of law they accepted it themselves: and it was a general rule in pleading, that facts might be stated according to their legal effect. When the action is brought between the immediate parties to the bill, it is usual to subjoin such counts as will embrace the consideration for which the bill has been given: for as the bill does (i) Turner v. Hayden, 4 B. & C. 1. (1) Gibb v. Mather, 8 Bingh. 214. See (m) Langston v. Corney, 4 Campb. 176. (o) Williams v. Germaine, 7 B. & C. 468. (p) Jackson v. Hudson, 2 Campb. 417. (q) 5 M. & W. 421; and see Carter v. Flower, 16 M. & W. 743; S. C. 16 L. J., Exch. 199. (r) 2 Campb. 604. not merge the original demand, if the plaintiff fail in substantiating in evidence the special count, he may resort to evidence on the common counts. Under the new rules, counts upon a bill or note, and for the consideration in goods, money, or otherwise, are considered as founded on distinct subject-matters of complaint. Where a promissory note had been given for money lent, which when produced in court was unstamped, Lord Kenyon, C. J., permitted the plaintiff to recover on a common count for money lent, by proving that when the money for which the note had been given was demanded of the defendant, he acknowledged the debt (s). Where a declaration in assumpsit contained three counts; the two first on promissory notes for 501. each, and the third for 1007. on an account stated, and the particulars of demand stated "This action is brought to recover the sum of 50l., being the amount of the promissory note in the first count of the declaration mentioned, and also the further sum of 501., the amount of the promissory note in the second count mentioned;" and then stated that the plaintiff would avail himself of the whole or any part of the declaration: and no evidence of the notes was given at the trial, but a conversation with the defendant was proved, in which he acknowledged he owed the plaintiff 1007. it was held, that the particulars were insufficient to enable the plaintiff to recover; and that in order to do so, he was bound to prove an admission, or an account stated with reference to the promissory notes (t). If the plaintiff's particular conveys the requisite information to the defendant, however inaccurately it may be drawn up, it is sufficient, unless the defendant will undertake to swear that he has been misled by the inaccuracy (u). And although the general rule is, that the plaintiff who has delivered an imperfect particular, shall be restricted in his evidence, and not permitted to recover any thing ultra the contents of such particular, yet if the defendant, in attempting to defeat the restricted claim of the plaintiff, gives him a better case than he was at liberty to make for himself, he will be entitled to a verdict for all that is proved due to him; what he could not have insisted on as a right, he may receive as a boon. Hurst v. Watkis, Ellenborough, C. J., 1 Campb. 68. Pleas. In all actions upon bills of exchange and promissory notes, the plea of "non-assumpsit" and never indebted" is inadmissible. In such actions, therefore, a plea in denial must traverse some matter of fact; ex. gr. the drawing, or making, or indorsing, or accepting, or presenting, or notice of dishonour, of the bill or note (x). Under the rule of H. Term, 4 Will. IV., it has been held, that "the rule is confined to cases where the action is (s) Tyte v. Jones, 1 East's R. 58, n. (a); Wilson v. Kennedy, 1 Esp. N. P. C. 245, S. P. (1) Roberts v. Elsworth, 10 M. & W. 653. (u) Day v. Bower, Ellenborough, C. J., 1 Campb. 69, n. (x) H. T. 16 Vict. 1853, rule 7. Substanti Hence of 2 bill or ag ise, are aint, W which ... perce her lest: been ord e debt Sither 10 ed "Es only on the note, and on the promise contained in or implied by law from it: it is to be read, as if it were worded thus:-'in all actions on bills of exchange and promissory notes simpliciter, without any other matter (y). Hence where an executor declared on a note payable to his testator, laying a promise to pay him, the executor, after the death of the testator; it was held, that such promise might be denied by a plea of non-assumpsit” (z). All matters of confession and avoidance, including not only those by way of discharge, but those which show the transaction to be either void or voidable, on the ground of fraud or otherwise, must be specially pleaded, ex. gr. illegality of consideration, either by statute or common law, drawing, indorsing, accepting, &c. bills or notes, by way of accommodation, &c. (a)., A plea simply, that no consideration was given for the bill or note, although good after verdict (b), is bad on demurrer. The proper course is to set out the facts showing absence of consideration, with a denial that there was any other consideration (c); and a traverse of these facts, without a traverse of the last averment, is sufficient (d). If, however, upon a plea, that no consideration was given, the replication be, that there was, the onus lies on the defendant to prove that there was not any consideration (e). To a declaration by indorsee against acceptor, the defendant cannot plead that the bill was accepted by him without consideration (f) from the drawer; for such is not inconsistent with plaintiff's legal demand, indorsement prima facie importing consideration (g). Assumpsit by the indorsee against the acceptor of a bill. Plea, that the defendant accepted the bill for the accommodation of the drawer, and that the drawer did not give, nor did the defendant receive, any consideration for his accepting or passing the bill; that the drawer indorsed the bill to the plaintiff without any consideration, and that the plaintiff held the bill without consideration; it was held, that the onus probandi lay on the defendant; that where there is not any fraud, or any suspicion of fraud, but the simple fact is as here, the plaintiff is not called upon to prove that he gave value for the bill (h). To a declaration in assumpsit by indorsee against maker of a promissory note, the defendant pleaded, that the note was indorsed and delivered to the plaintiff by his indorser, in violation of good faith, and in fraud and contempt of an order for referring the claim of that indorser to arbitration, and that the (y) Per Parke, B., in Timmis v. Platt, 2 M. & W. 721. (2) Timmis v. Platt, 2 M. & W. 720. (a) H. Term, 16 Vict. 1853, rule 8. VOL. I. (c) Boden v. Wright, 12 C. B. 445. 236. (e) Lacey v. Forrester, 5 Tyr. 567. See Whitaker v. Edmunds, 1 A. & E. 638. (f) Low v. Chifney, 1 B. N. C. 267. (g) Reynolds v. Ivemey, 3 D. P. C. 453. (h) Mills v. Barber, 1 M. & W. 425; overruling Heath v. Sansom, 2 B. & Ad. 291. E E plaintiff took the note with full knowledge of the premises. The plaintiff replied, that he had not, when he took the note, any knowledge of the premises in the plea mentioned. Issue thereon. Upon these pleadings, it was held that the defendant was bound to begin at the trial, and to prove the plaintiff's knowledge of the fraud; and that the plaintiff was not bound in the first instance to prove consideration given for the indorsement to him (i). Where, however, the defendant pleaded that the note declared on was made on an illegal consideration, and that the plaintiff gave no value, upon these allegations being put in issue by the plea; it was held, that it was sufficient for the defendant to prove the illegality, and that being done, the onus was cast upon the plaintiff to prove that he gave consideration (k). So also where the plea alleges fraud; upon the defendant proving that allegation, the plaintiff is bound to prove that he gave value (1). When a bill' has been altered after acceptance, the defendant may take advantage of it, under a plea that he did not accept the bill declared on (m). In this case the defendant has the right to begin (n). And where the bill is written on paper improperly stamped, the consequence is that it cannot be given in evidence; and this defence is admissible under the plea of non-acceptance (o). Evidence. The bill need not be produced at the trial unless there be some issue upon the plaintiff, to prove which renders its production necessary (p). Nor can the defendant insist upon its production in support of a plea, unless he has given the plaintiff notice to produce it (g). So the production of the bill may be rendered unnecessary by the defendant having admitted his hndwriting (r). The date of a bill of exchange, unless impeached by evidence, is considered as the true date (s). In an action by the indorsee of a bill against the acceptor, it is not necessary for the plaintiff to prove the hand-writing of the drawer, for when a bill is presented for acceptance, the acceptor is supposed to look at the hand-writing of the drawer, and on that account he is precluded from disputing it afterwards, and cannot give in evidence even a forgery of such hand-writing (t). And if in such an action the acceptor dispute the hand-writing of the drawer by plea, the plaintiff may reply the acceptance by way estoppel (u). But the handwriting of the first indorser, if the in (i) Smith v. Martin, 9 M. & W. 304. But see Bingham v. Stanley, 2 Q. B. 117. (k) Bailey v. Bedwell, 13 M. & W. 73. (1) Berry v. Alderman, 14 C. B. 95; S. C. 23 L. J., C. P. 34. (m) Cock v. Coxwell, 2 Cr. M. & R. 291. (n) Barker v. Malcolm, 7 C. & P. 101. (0) Dawson v. Macdonald, 2 M. & W. 26; recognized in Field v. Woods, 7 A. & E. 114, ante, p. 368. (p) Read v. Gamble, 10 Ad. & Ell. 597; but see Fruer v. Brown, R. & M. 145. of (g) Lane v. Mullins, 2 Q. B. 254; Davis v. Barker, 3 C. B. 606. (r) Chaplin v. Levy, 23 L. J., Exch. 117. (s) Anderson v. Weston, 6 B. N. C. 296. (t) Jenys v. Fawler, Str. 946, coram Raymond, C. J. Per Buller, J., in 1 T. R. 655, S. P. Per Dampier, J., in Bass v. Clive, 4 M. & S. 13, S. P. (u) Sanderson v. Coliman, 4 M. & Gr. 209; 4 Scott's N. R. 638. |