ment by default, his signature must be proved on the trial of the other: Chit. B. 381, n. g.

In an action by an executor against the acceptor of a bill, on a promise laid to the testator, the plt. must prove that the bill was accepted in the testator's lifetime: Anon. 12 Mod. 447; Sarel v. Whine, 3 East, 409.

Proof of Presentment.] In an action against the acceptor, if the acceptance is a general one, as where no place is specified for payment, or where a particular place is mentioned, without any further expression, Bayl. 157, it is not necessary to prove presentment, Turner v. Hayden, 4 B. & C 1, even though such presentment has been necessarily averred, Freeman v. Rennel, cor. Abbott, C. J., May, 1826, cited Chit. B. 402, Fayle v. Bird, 6 B. & C. 531; and, though the acceptor has sustained damage from the want of presentment, 4 B. & C. 1, Chit. B. 7 ed. 192; and an acceptor of a bill payable generally is not discharged, though the holder neglect to present it for three or four years: Farquhar v. Southey, 2 C. & P. 497; 1 M. & M. 14, s. c. But, if the acceptance be a qualified one, payable at a particular place only, and not otherwise or elsewhere, under 1 and 2 G. 4, c. 78, or it be made payable in the body of it at a particular place, and the contract is thereby qualified, the plt. must prove that it was presented at the place specified in the acceptance, Rowe v. Young, 2 B. & B. 165; and a demand at such particular place is a demand on the acceptor: Saunderson v. [*287] Judge, H. B. 509; De Bergareche v. Pillen, 3 Bing. 476.

A foreigh bill of exchange was drawn by A. upon C. & Co., who resided at Liverpool, in favour of L. R. & Co., and by L. R. & Co. endorsed to the plaintiffs. The bill was drawn, "Sixty days after sight, pay to L. R. & Co. in London," &c. It was refused acceptance by the drawee, but was accepted under protest for honour of the drawer by the defendants, as follows:-"accepted under protest for honour of L. R. & Co., and will be paid for their account if regularly protested and refused when due ;' this bill was presented for payment at the residence of the drawee in Liverpool, and protested at Liverpool for non-payment; but it was not presented for payment, or protested, in London, where the drawees had not any house of business:-held, that the holders were entitled to recover against the acceptors for honour; and that under these circumstances a presentment in London and protest there were not necessary. Mitchell v. Baring, et al., 4 Carr. & Payne, 35. It is not necessary that a bill so accepted at a place named, should be presented there on the very day it becomes due, provided the money is not lost by such neglect, Rhodes v. Gent, 5 B. & A. 244; and although a presentment must be proved, yet it is not necessary to show a notice of dishonour: Burrell v. Lonsdale, cor. Littledale, 1826; Roscoe, Evid. 125. See further, as to the mode of, and time for presenting a bill for payment, post.

Proof under Common Counts.] As to this, see ante, 278. Proof in Answer to Defence.] As to this, see the defences, post.

DRAWER, WHO IS NOT PAYEE, AGAINST ACCEPTOR.

Proof of Return and Payment of the Bill.] When the drawer of a

bill, payable to the order of a third person, and returned to and taken up by him, sues the acceptor, he must prove such return to him, and his payment of the bill, in order to show that the right of action is vested in him: Simons v. Parminter, 1 Wils. 185. The payment of the bill may be proved by the payee or endorsee, who returned the bill; but plt. must adduce some direct evidence of payment by him, as a general receipt, on the back of the bill, is prima-facie evidence of its having been paid by the acceptor, and will not of itself be evidence of payment by the drawer, though it is produced by him: Scholey v. Walsby, Pea. Rep. 24; Pfiel v. Vanbatenberg, 2 Camp. 439.

Proof of Acceptance.] This is necessary, as in other actions against acceptors, and as to which, see ante, 285. It is not necessary to prove that the acceptor had effects in hand, as the acceptance is itself prima facie evidence that the acceptor received value from the drawer; Vere v. Lewis, 3 T. R. 183. The bankruptcy of the acceptor is no defence against the drawer, who has paid the bill since the bankruptcy: Mead v. Braham, 3 M. & S. 91.

PAYEE, WHO IS NOT DRAWER, AGAINST ACCEPTOR.

The evidence in this case will be similar to that required in an action by the drawer, who is also payee, against acceptor, ante, 282 to 287. If a bill or note, however, be payable to a firm of A. B. and Co., and A. B. and C. D. sue thereon, they must prove that they were, at the time the bill or note was given, the component members of such firm: Chit. B. 389.

ENDORSEE AGAINST ACCEPTOR.

Proof of Deft.'s Acceptance.] The plt. must prove the acceptance which creates deft.'s liability, as ante, 285.

Proof of Drawing.] The handwriting of the drawer to the drawing is considered as admitted by the acceptance, and need not be proved, and cannot be contradicted by the deft.; and the circumstance of its having been forged constitutes no defence, unless it appear the bill was accepted before the drawee, deft., had sight of the bill; in which case, it appears, the drawer's handwriting must be proved: Tree v. Hawkins, Holt, C. 550; Pea. Evid. 348; sed quære; see Chit. B. 389, a.

Proof of Endorsement, when Necessary.] In an action against the

acceptor of a bill, all the endorsements stated, though some [*288] may have been unnecessarily so, must be proved, Bayl. 370, Critchlow v. Parry, 2 Camp. 182, Chit. B. 391; but the necessity of this is usually avoided by another count, omitting the unnecessary endorsements: ib. Chit. B. 359, n. None of the endorsements are admitted by the acceptance, Smith v. Chester, 1 T. R. 654; and, if the bill be negotiable in the first instance only by endorsement, the endorsee plt. must prove the bill was endorsed by the person to whose order it was intended to be made payable, ib., M'Ferson v. Thoytes, Pea. Rep. 20; and such first endorsement must be proved, though the bill be payable to the drawer's own order, and endorsed by him: ib.,

Bosanquet v, Anderson, 6 Esp. Rep. 43. Where the first endorsement is in full, directing the acceptor to pay the bill to a certain person, who has endorsed the same to plt., he must, in an action against the drawer or acceptor, prove that person's endorsement: Potts v. Read, 6 Esp. Rep. 57; Mead v. Young, 4 T. R. 28; Chit. B. 186-7. Even the circumstance of the deft.'s having accepted the bill after it was endorsed, does not dispense with the proof of such endorsement: ib.; Bosanquet v. Anderson, 6 Esp. Rep. 43. And, where the bill was shown to the drawer, with the name of the payee endorsed on it, and the drawer objected to the want of consideration only, it was held not to supersede the necessity of proving the endorsee's handwriting; Duncan v. Scott, 1 Camp. 100. And, though the drawee deft., by the terms of his acceptance, make it payable at a banker's, they must, in an action for the money, as paid for his use, prove the first endorser's handwriting: Foster v. Clement, 2 Camp. 17.

Where the bill is payable to the order of a fictitious person, proof that the deft. knew of that circumstance when he accepted the bill, will dispense with the proof of the supposed endorser's handwriting: Chit. B. 64.

With respect to the proof of endorsements subsequent to the first, if the first endorsement was in blank, it will be unnecessary, in any action, to prove any of the subsequent endorsements, although they were in full, Walwyn v. St. Quintin, 1 B. & P. 658, Chaters v. Bell, 4 Esp. Rep. 210, Smith v. Clarke, 1 ib., 180; they may be struck out of the bill at the time of the trial: if, however, they be stated in the declaration, and there be no count omitting such statement, they must be proved: Smith v. Chester, 1 T. R. 654; Bosanquet v. Anderson, 6 Esp. Rep. 43.

If the endorsement be by procuration, the endorsement, as well as the authority to make it, must be proved: Robinson v. Yarrow, 7 Taunt. 455; 1 Moo. 150, s. c. Post, "Principal and Agent."

If the bill or note be payable to the order of several persons, not in partnership, the right to transfer is in all collectively, and they must all endorse the bill, Bayl. 43; and the handwritings of each must be proved, Carvick v. Pickery, Doug. 653; and, p. Ld. Ellenb., Bosanquet v. Anderson, 6 East, 43; and though it was held, in a case at N. P., that an acceptance after an endorsement by one of the payees admitted the regularity of the endorsement, Jones v. Radford, 1 Camp. 83, this decision seems questionable; Chit. B. 393. In an action by the endorsee against the acceptor, where there was no actual proof of the handwriting of one of the endorsers, but it appeared that the endorsement was upon the bill when the deft. accepted it, and that he promised to pay it, and it was left to the jury, who found for the plt., and the court refused a new trial, and thought it a question for the jury, whether the acceptance and promise did not amount to an admission, that the name of every endorser was authentic: Hankey v. Wilson, Say. 223. An offer made by the acceptor to pay the bill with certain names on it, is a sufficient admission to supersede the necessity of proving the different endorsements: Lidford v. Chambers, 1 Stark. 326; Bosanquet v. Anderson, 6 Esp. Rep. 43.

If the bill be payable to the order of several persons in partnership, it is in general necessary to prove the partnership and handwriting of some member of the firm, or of an agent acting in their name. Where

several persons sue as endorsees of a bill of exchange, if the bill [*239] be endorsed in blank, that is, generally, the holders, whoever they may be, are, as such, entitled to recover, and there is no necessity for their proving that they were in partnership together, or that the bill was endorsed or delivered to them jointly, Rordasnz v. Leach, 1 Stark. 448; Ord v. Portal, 3 Camp. 239; but, when a bill is endorsed specially, the promise being only to pay a certain firm, strict evidence must be given that the firm consists of the persons who are plts.: ib. And, if a note be payable to a firm of A. B. and Co., and A. B. and C. D. sue thereon, they must prove that they were the component members of the firm at the time the note was given: Waters v. Paynter, cited Chit. B. 389. Where a bill of exchange is, by the direction of the payee, endorsed in blank, and delivered to A. B. and Co., who are bankers, on the account of the estate of an insolvent, which is vested in trustees for the benefit of his creditors, A. and B., two of the members of the firm, and also trustees, cannot, conjointly with a third trustee, who is not a member of the firm, maintain an action against the endorser, without some evidence of the transfer of the bill to them, as trustees, by the firm, by delivery or otherwise: Machell v. Kinnear, 1 Stark. 499. In proving partnership, the plt.'s counsel may suggest to the witness the names of the firm: Acerro v. Petroni, 1 Stark. 100.

Mode of Proof of Endorsements.] The endorsements should be proved by proving the handwriting of the parties, ante, 276, and the endorser may be called for that purpose, Richardson v. Allen, 2 Stark. 334, Hobson v. Rich, Chit. B. ib. 396; as also to prove the consideration given by the plt.; and he may be called after other witnesses for the plt. have negatived it: ib. If there was a subscribing witness to the endorsement, he should be called: Stone v. Metcalf, 1 Stark. 53.

A promise by defendant to pay, Hankey v. Wilson, Say. 233, or offer to renew, Bosanquet v. Anderson, 6 Esp. Rep. 43, made to the endorsee, is a sufficient admission to dispense with proof of the endorsement: Sidford v. Chambers, 1 Stark. 326; ante, 277. An admission by the endorser himself of his endorsement, will not suffice: Bosanquet v. Anderson, 6 Esp. Rep. 43; Sidford v. Chambers, 1 Stark. 326. The payment of money into court generally, on the whole declaration, amounts to an admission of the endorsement, and dispenses with the necessity of proving it, Gutteridge v. Smith, 2 H. B. 374, after proving the payment into court, Israel v. Benjamin, 3 Camp. 40. See "Rule of Court."

Identity.] In general, it is unnecessary to prove the identity of the persons by whom the endorsements were made; and proof that they were endorsed by a person of the same name as the person intended, will, prima-facie, suffice: Bulkeley v. Butler, 2 B. & C. 444, ib.; Mead v. Young, 4 T. R. 28. But, if there be any doubt whether the transfer were made by the proper party, the witness who is to prove the endorsement, or some other person, should be prepared to prove the identity of the party: ib. Chit. B. 391. In an action by the endorsee

against the acceptor of a bill of exchange, whereof E. S. was the payee, the plt. proved, that a person, calling himself E. S., came to C., having in his possession the bill in question, and also a letter of introduction (proved to be genuine), which was expressed to be given to a person introduced to the writer as E. S., and also another bill of exchange, drawn by the writer. The bearer of these documents, after remaining ten days at C., during which time he daily visited the plt., endorsed to him the bill in question, and received value for it, and also a letter of credit. Held, that this was evidence of the identity of this person with E. S., the payee of the bill, and, in the absence of any evidence, an answer sufficient to justify a verdict for the plt.: Bulkley v. Butler, 2 B. & C. 434.

*ENDORSEE AGAINST DRAWer.

[*290]

Proof of Drawing the Bill.] Plt. must produce and prove the bill, as ante, 274. The deft.'s handwriting to the drawing must be proved, ante, 276; and, as to proof when drawn by an agent, or partnership, ante, 276.

Proof of Endorsement.] The plt. must prove his title by evidence of the endorsement of the deft. or the payee; and, as to such proof, see ante, 287 to 289.

Proof of Acceptance.] In an action against the drawer or endorser, for default of payment by the drawee, his acceptance of the bill need not be proved, and this, although it has been stated unnecessarily in the declaration: Tanner v. Bean, 4 B. & C. 312; 6 D. & R. 338, 8. c.; overruling Jones v. Morgan, 2 Camp. 474.

Proof of Presentment for Acceptance, and Default Acceptance.] When a bill is payable at so many days after sight, the plt. must prove a presentment for acceptance: O'Keefe v. Dunn, 1 Marsh. 616; 6 Taunt. 305; 5 M. & S. 28, s. c. But, in other cases, it is sufficient to prove a presentment for payment when the bill becomes due, and a refusal to pay: B. N. P. 269; 3 East, 483; Chit. B. 405. If the bill has been refused acceptance, though it was unnecessary to present it, ib., the holder cannot, in general, recover, unless he has pursued a line of conduct, as giving notice, &c., as hereafter mentioned.

No certain time is fixed within which a presentment for acceptance of a bill payable at sight, or so many days after sight, must be made; but it should be made with due diligence, and within a reasonable time: Muilman v. D'Eguino, 2 H. B. 565. What shall be deemed a reasonable time must depend upon the particular circumstances of each case: keeping it a whole day, exclusive of the day of receiving it, without negotiating it, or sending it for acceptance, is not necessarily an unreasonable delay: Fry v. Hill, 7 Taunt. 397. No delay warranted by the common course of business is improper; nor is any delay which is occasioned by keeping the bill in circulation at a distance from the place where it is payable; but a delay by locking it up for any length of time is: Muilman v. D'Eguino, 2 H. B. 565, 570. If a bill payable abroad at a certain time after sight is taken in a course of negotiation, it is not necessary to send it by the first opportunity to the place where it is payaVOL. I.

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