ON PROM aforesaid.-[Insert counts on the consideration of the note, and the money counts, account stated, and breach.] 1SSORY NOTES. The like for several instalments due. On a note for less than 51.(x). [*122] abroad for the pay ment of guilders (y). [Proceed as directed in the preceding form, to the* and then as follows:] And the said plaintiff in fact saith, that afterwards, to wit, on the day of A. D. aforesaid, a large sum of money, to wit, the sum of £- for divers, to wit, three of the instalments payable by the said promissory note then last elapsed, became and was due and payable from the said defendant to the said plaintiff, upon and by virtue of the said promissory note, to wit, at, &c. aforesaid. For that whereas the said defendant, heretofore, to wit, on, &c. (date of note) in a certain place called (Clifford's Inn,) to wit, at, &c. (venue) according to the form of the Statute in such case made and provided, made his certain promissory note in writing, bearing date a certain day and year therein mentioned, to wit, the day and year aforesaid, and signed by him, the said defendant, in the presence of one A. B. a subscribing witness, who in due manner, and according to the form of the Statute in such case made and provided, attested such signature, and the said defendant thereby, twenty-one days after the date of the said promissory note, promised to pay the said plaintiff, (by the name of, &c. at, &c. cabinet maker, being the then place of abode of the said plaintiff, to whom or to whose order, the money contained in the said note was to be paid) or his order, the sum of (£4,) for value received, and then and there delivered the said promissory note to the said plaintiff, by reason whereof, and by force of the Statute in such case made and provided, he the said defendant then and there became liable, &c.-[State liability and promise to pay, according to the tenor and effect of the note, as ante, 115, and counts on the consideration of the note, and money counts, account stated, and breach.] *For that whereas the said defendant, heretofore, to wit, on, &c. in parts On a note beyond the seas, to wit, at (Amsterdam,) that is to say, at, &c. (venue) made made his certain promissory note in writing, bearing date the day and year aforesaid, and thereby then and there promised to pay, (nine) months after the date thereof, to the order of the said plaintiff, one hundred and one guilders holl value, that day received in cash, and then and there delivered the said promissory note to the said plaintiff, by means whereof 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, according to the tenor and effect thereof. And the said plaintiff avers, that the said one hund (x) See 17 Geo. 3. c. 30. s. 1. made perpetual by 27 Geo. 3. c. 16. 1 Wentw. 368. Chit. on Bills, 7th ed. 42, 59, 60. (y) As to notes made abroad, see Chit. on Bills, 7th ed. 327, n. e. and as to declarations relative to foreign money, see 1 Marsh. 33.-5 Taunt. 228.-2 D. & R. 15. -1 B. & C. 16. S. C. MISSORY red and one guilders holl, in the said promissory note mentioned, at the time of ON PROmaking the said promissory note and also at the time the same became due and payable, according to the tenor and effect thereof, were and still are of great value, to wit, the value of £- (z) *of lawful money of Great Britain, to [*123] wit, at, &c. aforesaid (a).—[Add counts on the consideration of the note, and the money counts, account stated, and breach.] On a note For that whereas the said defendant, heretofore, to wit, on, &c. at, &c. payable on made his certain promissory note in writing, bearing date the same day and the continyear aforesaid, and thereby then and there promised to pay, three days after gency of a ship's ar the arrival of the ship Britannica, at her moorings in the river Thames, to the rival (b). said plaintiff, the sum of £— being for a sum of money due from the said ship Britannica. And the said defendant then and there delivered the said promissory note to the said plaintiff. And the said plaintiff avers, that the said ship Britannica, afterwards, to wit, on, &c. (day of arrival, or about it,) arrived at her moorings in the river Thames aforesaid, to wit, at, &c. (venue) aforesaid, 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; by means whereof, &c.-[State the liability, and promise to pay, according to the tenor and effect, as ante, 115.] defend For that whereas the said defendant, heretofore, to wit, on, &c. at, &c. On a note made his certain promissory note in writing, and thereby acknowledged him- payable on self to have borrowed and received of the said plaintiff the sum of £- being ant's wife for the purchase for himself of a lieutenant's commission in the first regiment attaining the age of of foot guards, under the command of the Right Honorable the Duke of Marl- 21 (c). borough, and which said sum of £- he the said defendant by the said promissory note, promised to pay as soon as E. his wife should attain the age of 21 years, and then and there delivered the said promissory note to the said plaintiff, by means, &c.-[State the liability, and promise to pay, according to the tenor and effect, as ante, 115, and then proceed as follows :]-And the said plaintiff, in fact, saith, that although the said E. the wife of the said defendant, afterwards, to wit, on, &c. (the day of her coming of age, or about it,) did attain the age of 21 years, to wit, at, &c. (venue) aforesaid. Yet the said de- Breach. fendant, not regarding his said promise and undertaking, *did not, as soon as [124] his said wife so attained the age of 21 years as aforesaid, or at any time before or since, pay the said sum of £- or any part thereof, to the said plaintiff, but hath hitherto wholly neglected and refused, to wit, at, &c. aforesaid. against For that whereas the said defendant, heretofore, to wit, on, &c. (date of By payee note) at, &c. made his certain promissory note in writing, bearing date a certain day and year therein mentioned, to wit, the day and year aforesaid, and (z) State enough to cover the value in English money. (a) In some of the precedents, this averment is introduced before the statement of the liability and promise to pay. (b) As to this contingency, see Chitty on Bills, 7th edit. 42, 336.-Bayl. 15.-Selw. VOL. II. 12 N. P. 344, 347, and note 71.-Plead. A. 12. (c) See precedent, 1 Wentw. 350.-Plead. maker of a note, payable six months af ter the death of another. MISSORY NOTES. ON PRO- thereby then and there promised to pay, (six) months after the decease of his father, E. F., to the said plaintiff or order, the sum of £- for value received, and then and there delivered the said promissory note to the plaintiff, by means, &c.[State liability, and promise to pay, according to tenor and effect, as ante, 115, and then proceed.] And the said plaintiff in fact saith, that afterwards, and after the making of the said promissory note, to wit, on, &c. the said E. F. died, to wit, at, &c. aforesaid. And although six months from the time of the decease of the said E. F. have long since elapsed, to wit, at, &c. yet the said defendant, although he was afterwards, to wit, on, &c. at, &c. aforesaid, requested by the said plaintiff so to do, hath not as yet paid the said sum of £or any part thereof, to the said plaintiff, but hath hitherto wholly neglected and refused, and still doth neglect and refuse so to do, to wit, at, &c. aforesaid.-[Add counts on original consideration, money counts, account stated, and breach.] First inFor that whereas the said defendant, heretofore, to wit, on, &c. at (London) dorsee that is to say, at, &c. made his certain promissory note in writing, bearing against maker, date a certain day and year therein mentioned, to wit, the day and year aforepayable said, and thereby then and there promised to pay, two months after the generally, and not at date thereof, to one E. F. or order, the sum of £- for value received, and a particu- then and there delivered the said promissory note to the said E. F. And the lar place said E. F. to whom or to whose order the payment of the said sum of money (d). in the said promissory note specified, was to be made after the making of the said promissory note, before the payment of the said sum of money therein specified, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, indorsed the said promissory note, by which said indorsement, he the said E. F. then and there ordered and appointed the said sum of money in the said promissory note specified to be paid to the said plaintiff, and then and there delivered the said promissory note so indorsed as aforesaid 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. aforesaid, undertook, and *then and there faithfully promised [*125] the said plaintiff, (1) to pay him the said sum of money in the said promissory First indorsee against maker where note note specified, according to the tenor and effect thereof.-[Here insert the money counts, and account stated, and common breach; as there is no privity of contract between indorsee and maker of a note, it is not usual to add any other counts, as in the preceding forms.] For that whereas the said defendant heretofore, to wit, on, &c. at (London) that is to say, at, &c. made his certain promissory note in writing, bear (d) See notes, Chitty on Bills, 7th ed. payable at 494, &c. a particu lar place (e). (e) See the two forms, ante, 117, 118, and the notes, which should be observed, 14 East, 500-4 Campb. 201.-5 Taunt. 30. (1) See Banks v. Camp, 2 Moo. & Scott, 734. MISSORY ing date a certain day and year therein mentioned, to wit, esaid, at, &c. afore- ON PROaforesaid, and thereby then and there promised to pay, at (Mementioned inmonds and Co.'s, Charing-cross,) (two) months after the date thereof, id resiE. F. or order, the sum of £- for value received, and then and there deliver ed the said promissory note to the said E. F.; and the said E. F. to whom or to whose order the payment of the said sum of money, in the said promissory note specified, was to be made, after the making of the said promissory note, and before the payment of the said sum of money therein specified, to wit, on the day and year aforesaid, at, (venue) aforesaid, indorsed the said promissory note, by which said indorsement, he the said E. F. then and there ordered and appointed the said sum of money in the said promissory note specified, to be paid to the said plaintiff, and then and there delivered the said promissory note, so indorsed as aforesaid, to the said plaintiff*. And the said plaintiff avers, that afterwards, and when the said note became due and payable, according to the tenor and effect thereof, to wit, on the said day of — in the year aforesaid, at the said Messrs. Drummonds and Co.'s, to wit, at, &c. (venue) aforesaid, the said promissory note was duly presented and shown 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 other *time before or after- [ *126 ] wards, pay the said sum of money therein specified, or any part thereof, but wholly neglected and refused so to do, 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, 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. 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 afterwards requested.-[Insert a count as on a note payable generally, and the common money counts, account stated, and breach.] For that whereas the said defendant, heretofore, to wit, on, &c. at (London) Second or that is to say, at, &c. (venue) made his certain promissory note in writing, bear- remote indorsee, ing date the day and year aforesaid, and thereby then and there promised to pay, against (two) months after the date thereof, to one E. F. or order, the sum of £- for maker (1). value received, and then and there delivered the said promissory note to the said E. F.; and the said E. F. to whom or to whose order the payment of (1) It has been held, that a remote indorsee may declare as the immediate indorsee of the first indorser, or of any intermediate indorsee, striking out on the trial the indorse ments not stated. 4 Esp. Rep. 211; Bayley on Bills, 184; Chitty on Bills, 8th edit. 588; but from Stein v. Yglesias, 1 Gale's Rep. 98, it would seem that if plaintiff wish to take the benefit of any intermediate indorser's title, this indorsement must be stated. ON PRO thereby then and MISSORY NOTES. father, E. 125 the day and year ON FRO rs. Drum one NOTES. MISSORY Short in ssory note specified was to be made, ry note, and before the payment of the , to wit, on the day and year aforesaid, at, promissory note, by which said indorsement, re ordered and appointed the said sum of money specified, to be paid to one G. H. and then and promissory note so indorsed, to the said G. H.; and o whom or to whose order the payment of the said sum of ad promissory note specified, was by the said indorsement dimade, after the making of the said *promissory note, and before the at of the said sum of money therein specified, to wit, on the day and year resaid, at, &c. aforesaid, indorsed the said promissory note, by which said lastmentioned indorsement, he the said G. H. then and there ordered and appointed the said sum of money in the said promissory note specified, to be paid to the said plaintiff, and then and there delivered the said promissory note to the said plaintiff (g); 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. 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, according to the tenor and effect thereof.[Add the usual money counts, account stated, and breach.] And the said G. H. (the payee) then and there indorsed and delivered the dorsement said promissory note to one J. K. who then and there indorsed and delivered (h). the same to the said plaintiff. (Or if the action be against the payee or maker, say, "and the said G. H. then and there indorsed and delivered the said note to the said plaintiff.") [ *128 ] *[After stating an indorsement to G. H. proceed as follows :] And the said On a note defendant, after the said indorsement so made to the said G. H. as aforesaid, indorsed for residue to wit, on the day and year aforesaid, at, &c. aforesaid, paid to the said G. after part H. a certain sum of money, to wit, £10, in part of payment of the said sum payment (i). of £50, in the said note specified, and the said G. H. afterwards, and before the payment of the residue of the said sum of £50, in the said note speci (f) A variance between the real name and what appears on the bill, is immaterial.-1 Stark. 47, as to description and proof of indorsement, by persons trading under a firm, &c. see 2 D. & R. 281 (1). (g) If there were other indorsements between defendant and plaintiff, here describe them, the same as the second indorsement. It is usual in the first count to state all the indorsements on the bill before the plaintiff's name, and then, if it be apprehended that one or more of such indorsements cannot be proved, to add a count or counts omitting the statement of such indorsements.-4 Esp. Rep. 211. Chitty on Bills, 7th ed. 359.-Bayl. 184. In such second count, in order to avoid prolixity, state the indorsement shortly, as in the next precedent. (h) This concise mode of stating the indorsements, will in all cases suffice, and it is usual to adopt them in a second count. (i) As to the law, Chitty on Bills, 7th edit. 130. See precedent, Pleader's A. 22. (1) Cochran v. Scott, 3 Wend. Rep. 229. } |