(and which said G. H. in his life-time, and at the time of his death, executor of the last will and testament of the said E. F. deceased), with will of the said E. F. annexed, being, &c. (ante, 12.) For that whereas the said E. F. in his life-time, to wit, on, &c. at, &c. was indebted, &c. Yet the said E. F. in his life-time, and the said G. H. in his life-time, now deceased, after the death of the said E. F. and which said G. H. in his life-time, and at the time of his death, was executor of the last will and testament of the said E. F. deceased, and the said defendant, administrator as aforesaid, after the death of the said G. H. not regarding, &c. have not, nor have nor hath any or either of them as yet paid, &c. (although often requested so to do.) But to pay the same, or any part thereof, to the said plaintiff, the said E. F. in his life-time, and the said G. H. executor as aforesaid, in his life-time, and after the death of the said E. F. respectively refused, and the said defendant, administrator as aforesaid, hath, ever since the death of the said G. H. hitherto wholly refused, and still refuses so to do, To the damage, &c. husband (to wit.) A. B. complains of C. D. and E. his wife, which said E. Against is adminstratrix, of all and singular the goods, chattels, and effects, which and wife, were of G. H. deceased, at the time of his death, who died intestate, being, adminis&c. For that whereas the said G. H. in his life-time, to wit, on, &c. at, &c. tratrix, before mar. was indebted, &c. Yet the said G. H. in his life-time, and the said E. ad- riage. ministratrix as aforesaid, after the death of the said G. H. and whilst she was sole and unmarried, and the said defendant and E. his wife (which said E. is administratrix as aforesaid), since their intermarriage, not regarding, &c. but contriving, &c. have not, nor have nor hath any or either of them, as yet paid, &c. (although often requested so to do.) But to pay the same, or any part thereof, to the said plaintiff, the said G. H. in his life-time, and the said E. administratrix as aforesaid, after the death of the said G. H. and whilst she was sole and unmarried, respectively refused, and the said defendant and E. his wife, administratrix as aforesaid, have, ever since their intermarriage, hitherto wholly refused, and still refuse so to do, To the damage, &c. after mar [As in the last precedent to the conclusion, which is as follows:]-Yet the Against said G. H. in his life-time, and the said C. D. and E. his wife, which said E. husband and wife, is administratrix as aforesaid, since the death of the said G. H. not regarding, adminis&c. but contriving, &c. have not, nor have nor hath any or either of them, as tratrix, yet paid, &c. (although often requested so to do.) But to pay the same, or riage. any part thereof, to the said plaintiff, the said G. H. in his life-time wholly refused, and the said C. D. and E. his wife, which said E. is administratrix as aforesaid, have, ever since the death of the said G. H. hitherto wholly refused, and still refuse so to do, To the damage, &c. 40RY *II. SPECIAL COUNTS. [For the commencement in K. B., C. P., or Exchequer, or other Courts, ante, 12 to 24, or by or against a person in a particular character, ante, 24 to [*115] ON PROM- NOTES. Payee against BON PRO MISSORY maker on payable lar place 38, and then proceed as follows:]-For that whereas the said defendant, heretofore, to wit, on, &c. (b) at London (c), that is to say, at, &c. (d) made his certain promissory note in writing, bearing date a certain day and year therein mentioned, to wit, the day and year aforesaid (e), and thereby then and there generally, promised to pay, two months after the date thereof, to the said plaintiff'(ƒ), and not at or order, the sum of £ — (g) for value received (h), and then and there dea particu- livered the said promissory note to the said plaintiff'; by means whereof, and by force of the statute in such case made and provided, the said defendant then and there became liable to pay to the said plaintiff the said sum of money in the said promissory note specified, according to the tenor and effect of the said promissory note; and being so liable, he, the said defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money in the said promissory note specified, ac[*116] cording to the tenor *and effect thereof (i).—[Then add common counts on the (a). consideration or debt for which the note was given, and the common money counts, interest, and account stated, and usual breach, laying the day in all the common counts after the note was due, and some day before the title of the declaration.] For that whereas the said defendant and one G. H. heretofore, to wit, on, &c. (date of note) at, &c. made their certain promissory note in writing, bearing date a certain day and year therein mentioned, to wit, the same day and year aforesaid, and thereby then and there jointly and severally promised to pay (two) months after the date thereof, to the said plaintiff, or his order, £— for value received, and the said defendant and the said G. H. then and there delivered the said promissory note to the said plaintiff. By reason whereof, &c.-[State the defendant's liability, and promise to pay, according to the tenor and effect of the note, as ante, 115, and add a count as on a note made by defendant alone, without noticing the other party.] For that whereas the said defendants, (a) See precedents and notes, Chitty on Bills, 7th ed. 409. (b) Date of note, or if no date the day it was made or issued. See Chitty on Bills, 7th ed. 409. If the note bear date a day different from that intended, state it, as in form, post, 117. (c) Place of date, but this need not be stated, 3 Campb. 304.-Chitty on Bills, 7th ed. 355, 489, n. d.-If the note be drawn at Dublin in Ireland, it should perhaps be so stated, 2 B. & A. 301.-1 Chit. Rep. 28. S. C.-1 B. & C. 16.-2 D. & R. 15. S. C. (d) The venue in the action. (e) If there be no date, or the real date be doubtful, omit the words "bearing date." See 6 M. & S. 73.- 3 B. & P. 173. (f) It is usual here to state, "by the name and addition of A. B. esquire," but this is unnecessary, and if there be a variance, fatal. If however, the payee be misdescribed in the note, it may then be advisable in one count to adopt such description. by and under the names, style, and (g) If the note be payable in Irish currency, it must be expressly so stated. 2 D. & R. 15.-1 B. & C. 16. Š. C.—4 B & A. 246. -The omission of the word "sterling" is immaterial. 2 B. & A. 301. See Creswell v. Crisp, 2 Dougl. 633. (h) This should agree with the note. What a variance in this, Chitty on Bills, 7th ed. 356. It is not necessary to state the words "value received" in a declaration in assumpsit, 2 Chit. Rep. 333. (i) This mode of laying the promise is proper, though the plaintiff relies on a subsequent promise, 16 East, 420.-See 3 East, 481. (k) The parties may be sued jointly or separately; and, if sued separately, the note may be, and usually is, stated as made by the defendant alone. Chitty on Bills, 7th edit. 346. When a contract is joint and several in an action against one, it is not necessary to notice the other. 4 Campb. 34.-5 Co. 119 b.-1 B. & A. 224. ON PRO- NOTES. firm of Jonathan Dubbins and Co. (or "by and under the style and description of the Iron Company") heretofore, to wit, on, &c. (date of note) at, &c. made their certain promissory note in writing, bearing date, &c. and thereby, &c. (proceed as in the form, ante, 115.) If the action be against an indorser on a note so made, then the names of the makers need not be stated; and though there was only one maker, the count may run thus ::-"For that whereas certain persons using (or trading under') the names, style, and firm of Jonathan Dubbins and Co., (or using the style and description of the Iron Company,') heretofore, to wit, on, &c. at, &c. made, &c." and afterwards describing the parties as "the said makers of the said promissory note." It is not necessary to state that one partner made or indorsed a note for himself and co-partners, [117] and it is better to state that all were made or indorsed. 4 Campb. 78. On a note made by an agent For that whereas the said defendant, heretofore, to wit, on, &c. at, &c. by one E. F. his then agent in that behalf, made his certain promissory note in writing, bearing date, &c. [as ante, 115. The agent's name is not afterwards (1). noticed.] For that whereas the said defendant, on the (1st) day of (January,) in the On a note wrongly year of out Lord (1825,) at, &c. made his certain promissory note in writing, dated (m). bearing date, by mistake, the (1st) day of (January,) A. D. (1824,) when in truth and in fact the said promissory note was, at the time of the making thereof, meant, intended, and understood by the said defendant and said plaintiff to be dated on the (1st) day of January, A. D. (1825,) and thereby promised to pay to the said plaintiff or order, (two) months after the date thereof, that is to say, two months after the said (1st) day of January, (1825,) when the said promissory note was so made and meant, and intended, and understood to be as aforesaid, £- for value received, and then and there delivered, &c.-[Proceed as directed in the precedent, ante, 115.] against maker of a note paya particular For that whereas the said defendant heretofore, to wit, on, &c. (date of note) Payee at (place where made) that is to say, at, &c. made his certain promissory note in writing, bearing date the day and year aforesaid, and thereby then and there promised to pay at (Messrs. Drummonds and Co.'s bankers, Charing-cross) ble at a (as in the note) (two) months after the date thereof, to the said plaintiff (o) or place (n). order, the sum of £- for value received, and then and there delivered the said *promissory note to the said plaintiff'; and the said plaintiff in fact saith, that afterwards, and when the said note became due and payable according to the tenor and effect thereof, to wit, on the day of in the year aforesaid (p), at the said (Messrs. Drummonds and Co.'s bankers, Charing-cross,) Campb. 201.-14 East, 500.-5 Taunt. 30. (0) As to statement of the addition there [*118] MISSORY NOTES. ON PRO aforesaid, to wit, at, &c. (venue) aforesaid, the said promissory note was duly presented and shown (q) for payment thereof, and payment of the said sum of money therein specified, was then and there duly required according to the tenor and effect of the said promissory note; but that neither the said (Messrs. Drummonds and Co.) nor the said defendant, nor any other person or persons on behalf of the said defendant, did or would, at the said time when the said promissory note was so presented and shown for payment thereof as aforesaid, or at any time before or afterwards, pay the said sum of money therein specified, or any part thereof, but wholly neglected and refused so to do (r), of all which said several premises the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, had notice (s). By means whereof, and by force of the Statute in such case made and provided, the said defendant then and there became liable to pay to the said plaintiff the said sum of money in the said promissory note specified, when he the said defendant should be thereunto afterwards requested; and being so liable, he the said defendant, in consideration thereof, afterwards, to wit, on, the day and year last aforesaid, at, &c. (venue) aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money in the said promissory note specified, when he the said defendant should be thereunto after[*119] wards requested.-[It is advisable then to add a count, as *ante, 115, as on note payable generally, and the other common counts, as there directed.] On a note [Proceed precisely as in the precedent Payee v. Maker, ante, 115, to the payable on end, showing that the note was payable on *demand, and stating the liability demand(t). [*120] and promise to pay, according to the tenor and effect of the promissory note, and then conclude as follows:]-And the said plaintiff in fact saith, that afterwards, to wit, on, &c. (the day of demand, or any day before the title of the declaration,) to wit, at, &c. aforesaid, payment of the said sum of money, in the said promissory note specified, was duly demanded by the said plaintiff of the said defendant, according to the tenor and effect of the said promissory note.-[Add a count on a note payable on demand without the above averment, and the money counts and account stated, alleging a special request in the breach.] On a note payable by instalments for the whole sum upon one default (u). For that whereas the said defendant, heretofore, to wit, on the (1st) day of (January,) in the year of our Lord (1830,) at, &c. made his certain promissory note in writing, bearing date a certain day and year therein mentioned, to of the day of the date, and then add three (4) It need not be stated who made the (†) An allegation of non-payment at the particular place seems unnecessary. 3 M. & S. 150, and see the next precedent. (s) This is usually averred, but it is said, need not be proved. 3 Campb. 261. (t) It seems advisable, in one count, to aver a demand, 3 Campb. 459. Chitty on Bills, 7th edit. 361. But semble, that it is not necessary. Bayl. 187. Selw. N. P. 3d edit. 321.-Ry. & Moo. 363. King v. Roxbrough, 2 Tyr. 468; 2 Crom. & T. 418, S. c. (u) See the precedent, Plead. A. 11. Bayl. on Bills, 190. If when the action is commenced, all the instalments are due by ef fluxion of time, it will suffice to declare gen said plaintiff, or order, the sum of (£20,) in say) (£5,) part thereof, on the thereof, on the day of the day of day of ISSORY wit, the same day and year aforesaid, and then and there delivered the said ON PROMnote to the said plaintiff, and thereby then and there promised to pay to the manner following, (that is to then next, (£5) other part then next, and (£10,) residue thereof, on then next, and that, in case default should be made in any or either of the said payments, then the whole of the said sum of £20 should become due on demand. By means whereof, and by force of the Statute in such case made and provided, the said defendant then and there, to wit, on the day and year first aforesaid, became liable to pay to the said plaintiff the said sum of (£20,) in the said promissory note specified, according to the tenor and effect of the said promissory note; and being so liable, he the said defendant in consideration thereof, afterwards, to wit, on the day and year first above mentioned, at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of £20, in the said promissory note specified, according to the tenor and effect of the said promissory note. And the said plaintiff in fact saith, that after making of the said promissory note, to wit, on the day of next ensuing [121] —— the date thereof, default was made by the said defendant in the payment of £5, in the said promissory note specified, which had then become due and payable, to wit, at, &c. aforesaid, whereby, and according to the tenor and effect of the said promissory note, and his said promise and undertaking, the said defendant then and there became liable to pay to the said plaintiff the whole of the said sum of £20, in the said promissory note specified, when he the said defendant should be thereunto afterwards requested.-[Add count on original consideration, the money counts, account stated, and breach.] stalment which clause that there is no the whole shall be payable on For that whereas the said defendant, heretofore, to wit, on, &c. (the date) On a note at, &c. made his certain promissory note in writing, bearing date a certain for one inday and year therein mentioned, to wit, the same day and year aforesaid, and due in then and there delivered the said promissory note to the said plaintiff, by which, &c.-[State the note according to its form, and then state the liability, and promise to pay the whole sum, according to the tenor and effect of the note, as in the last precedent, and proceed as follows :]*-And the said plaintiff in fact saith, that after the making of the said promissory note, to wit, on the day of in the year aforesaid (w), at, &c. aforesaid, a certain sum of money, to wit, the sum of £5, part of the said sum of £20, in the said promissory note specified, became and was due and payable from the said defendant to the said plaintiff, upon and by virtue of the said last-mentioned note, and which said last-mentioned sum of £5 he the said defendant then ought to have paid to the said plaintiff, according to the tenor and effect of the said promissory note, and of his said promise and undertaking, to wit, at, &c. erally on the note, setting it out, and without averring any default. If the note be payable by instalments, without any clause as to the whole becoming due on one default, then the next precedent will be proper. The instalments become due three days after the day named for the payment of each of (w) If any one of the days on which an one de fault. |