neceffary.

Nor," &c. This (a) allegation is un

22. "Protefted," &c. The proteft (b) need not be stated in an action on an Inland Bill, in an action on a foreign one the Plaintiff (c) muft either state it or (d) fhew that it was not neceffary; but the omiffion can (e) only be taken advantage of by a Special Demurrer.

In ftating the proteft if the Plaintiff allege, "that

(f) he protested the Bill or caufed it to be protested," it will be unobjectionable if the Defendant pleads

over.

Wegersloffe v. Keene, Str. 214. In affumpfit against the acceptor upon a bill by which the Drawer requefted him to pay "that his first bill (his fecond not being paid") the declaration ftated that the Defendant promifed to pay the money, but had not, the Defendant pleaded an infufficient plea, and upon demurrer to the replication objected that there was no averment that the fecond bill was not paid, but the objection was overruled, and judgment given for the Plaintiff.

(a) Vide poft c. 6.

(b) See Brough v. Parkins, ante p. 75 note (b).

(c) Solomons v. Staveley, cited Dougl. 2d ed. 684. n. 144. The court held on the authority of the precedent in Dunstar v. Pierce, Lill. Ent. 55that the neglect to allege a proteft in an action on a foreign bill, was matter of form only, and could not be taken advantage of on a general demurrer.

(d) In Rogers v. Stephens, fupra p. 78. note (d) Lord Kenyon and afterwards the court held a proteft for non-acceptance not neceflary to fupport an action against the Drawer, because it appeared he had no effects in the hands of the Drawee.

(e) Witherby v. Sarsfield, 1 Show. 125. The declaration upon a foreign bill ftated that the Plaintiff "protested it, or caused it to be protested;" the Defendant pleaded that he was not a merchant, and upon demurrer had judgment. A writ of error was brought, and it was then for the first time urged that the allegation that the Plaintiff protested the bill, or caused it to be protested, was uncertain, but the court thought it well enough, reversed the judgment below, and then judgment was given for the Plaintiff.

23. "Notice,"

23. "Notice," If the Defendant is primâ facie intitled to notice, it is effentially neceffary to flate that he had (a) notice, or to fhew that he was not intitled thereto.

24. To the faid John," In an action upon a Bill or Note stated upon the count to be payable to the order of the Plaintiff, it is fometimes (b) ufual, though (c) unneceffary, to infert here an allegation that the Plaintiff made no order; but the (d) better way upon a Bill or Note made fo payable is to state according to the legal operation that it was made payable to the Plaintiff, and then this allegation would be impertinent.

25. "When," &c. In an action against the acceptor of a Bill or maker of a Note not payable immediately upon prefentment, inftead of alleging that the Defendant became liable, and promised to pay when he should be thereunto afterwards requefied, he is ftated to have become liable, and promifed to pay according to the tenor and effect of the Bill and acceptance in the one cafe, and of the Note in the other.

26. "And," &c. This claufe is unneceffary in an action againft either the (a) acceptor of a Bill

(a) See Rushton v. Afpinall, ante p. 109.

(6) It was done in Fisher v. Pomfret, Carth. 403.

(cd) Vide Frederick v. Cotton, ante p. 105. note (c).

(e) Wegersloffe v. Keene, Str. 214. In affumpfit against the acceptor an objection was taken to the promise as stated; fed per Fortescue J. "The "Plaintiff need not fet out any promife. Lowther v. Conyers, which was

upon a promiffory note, and they left out fuper fe affumpfit, and yet it "was held well enough, for the law raises a promise.”

ог

) Starke v. Cheeseman, Carth. 509. Salk 128. After judgment by de. tin an action against the Drawer of a foreign bill it was objected in arreft udgment, that it was not stated in the declaration that the Defendant mifed to pay the money after the proteft made, but it was anfwered, that law did raise the promise upon the custom of merchants, and therefore was not necessary to lay an actual promise, and the Plaintiff had judg

it.

) Simmonds v. Parminter, 1 Wils. 185. 4 Bro. Parl. Cas. 604. The aration upon two foreign bills for the payment of 4000 and 5000 dollars not state what their value was, and after a demurrer this was urged as a ind to arreft the judgment; but the court gave judgment for the Plaintiff, upon a writ of error that judgment was affirmed.

Q

СА Р.

САР.

CA P. VI.

Of the Evidence neceffary to intitle the Plaintiff to recover upon a Bill or Note, and the Defence which may be fet up against him.

To recover in respect of a Bill or Note upon a count for money lent, money paid, or money had and received, the Plaintiff muft prove fuch of those facts which are not admitted, as he ought to state upon a special count; and upon a special count, he muft prove fuch of the facts which are not admitted as appear upon the face of that count neceffary.

An acceptance admits the ability of the Drawer to make the Bill, and, if made after fight of the Bill, his (a) fignature; an indorsement admits the

(a) Wilkinfon v. Lutwidge, Str. 648. In an action against the the acceptor of a Bill, Raymond C. J. allowed the Plaintiff to read the bill without proving the Drawer's hand because he thought the acceptance a sufficient acknowledgement on the part of the Defendant, but he faid it would not be conclufive; and if the Defendant could fhew the contrary, the reading the bill fhould not preclude him. See Cooper v. Le Blanc poft 117, note (c). Jenys v. Fawler, Str. 946. In an action against the acceptor of a bill, Raymond C. J. held it was not neceffary for the Plaintiff to prove the Drawer's hand, and on the Defendant's offering to call witnesses to swear they believed it was not the Drawer's hand, the Chief Justice would not admit the evidence, and he inclined strongly that actual proof of forgery would not excuse the Defendant.

Price v. Neale, Burr, 1354. Blackft. 390. Two forged bills were drawn

upon

ability and (a) fignature of every

party.

antecedent

But an acceptance, though made after fight of an indorsement does not admit the ability or (b) fignature of the Indorfer.

upon the Plaintiff, which he accepted and paid; on discovering the forgery he brought this action for money had and received to recover back the money, but on a cafe referved, the court held it would not lie; and Lord Mansfield faid, "It was incumbent on him to have been satisfied before he accepted or paid them, that the bills were the Drawer's hand ;" and in Smith v. Chester, 1 Term Rep. 655. Buller J. fays, "When a Bill is pre"fented for acceptance, the acceptor looks to the hand writing of the "Drawer, which he is afterwards precluded from difputing, and it is on that account that he is liable, even though the bill is forged."

(a) Lambert v. Pack, Salk. 127. Lord Raym. 443. 12 Mod. 244. Holt. 117. In an action against the Indorfer of a bill, Holt C. J. ruled that it was not neceffary to prove the Drawer's hand, for though the bill was forged, the Indorfer would be liable.

Williams v. Seagrove, 2 Barnard. B. R. 82. A rule was made abfolute for delivering up a note to an Indorfee, though it was proved to have been forged, upon the ground that he might notwithstanding bring actions upon it against the Indorfers. See alfo Str. 442.

(b) Smith v. Chester, 1 Term Rep. 654. In an action by the Indorfee of a bill against the acceptor, the Plaintiff was non-fuited because he could not prove the hand writing of the first Indorfer, though the indorsement was on the bill at the time of the acceptance. A motion was made to fet aside the non-fuit on the ground that as the indorsement was on the bill when it was accepted, the acceptance admitted it, but the court thought it did not, because the acceptor only looks to the hand-writing of the Drawer, and that he is afterwards precluded from difputing. Rule discharged.

Carvick v. Vickery, Dougl. 630-653. N. 134. ante p. 37. note (6). A bill payable to the order of Father and Son, who were not partners, was indorsed by the Son only, after which it was presented, and the Drawee wrote upon it a direction to his Banker to pay it. In an action against the Drawee the question was, Whether the Indorsement by the Son alone was fufficient? and Willes J. inclined to think the order to the Banker was a recognition of the Indorsement. But Afhhurft and Buller Js. thought not. However in Hankey v. Wilfon, Say. 223. in an action by the Indorfee of a bill against