to resort for payment: Brown v. Maffey, 15 East, 216. Where the deft. is a bankrupt, notice should be given to him before the choice of assignees, and, after such choice, to them: see ex. p. Moline, 19 Ves. 216. If the party be dead, notice should be given to his executors or administrators; and it is expedient, though not, in general, absolutely necessary, to give notice to a person who has guaranteed the payment of the bill ante, 204; Bayl. 138-9. When the party entitled to notice is abroad at the time of the dishonour, if he have a place of residence in England, it will be sufficient to leave notice of non-acceptance at that place; and a demand of acceptance or payment from his wife or servant would, in such case, be regular: Cromwell v. Hynson, 2 Esp. Rep.

511-12.

Proof under Common Counts.] As to what the plt. will be at liberty to prove under the common counts, to entitle him to a verdict, see ante, 278.

ENDORSEE AGAINST ENDORSER, WHO IS NOT DRawer.

The plt.'s proofs in this action will, for the most part, be similar to those required in an action against the drawer who is also endorser: as to which, see ante, 290 to 299.

Proof of Drawing.] This is unnecessary, as the endorsement admits the handwriting of the drawer, and deft. cannot even show it is a forgery: Lambert v. Pach, 1 Salk. 127; 1 Ld. Raym. 443, s. c. ; Tree v. Rawlings, Holt, C. N. P. 550.

Proof of Acceptance.] This is unnecessary, even though it be stated in declaration. See ante, 290, Tanner v. Beau, 4 B. & C. 312.

Proof of Endorsement.] The handwriting of all endorsements prior to the deft.'s is admitted by his endorsement, Lambert v. Pack, 1 Salk. 127, 1 Ld. Raym. 443, Critchlow v. Parry, 2 Camp. 182, Chaters v. Bell, 4 Esp. Rep. 210; and they need not be proved, although forged, and stated in the declaration: ib. But, if a subsequent endorsement be stated, it must be proved; and, for this reason, it is usual to insert a count stating the deft. to have endorsed the bill to plt.: Bosanquet v. Anderson, 6 Esp. Rep. 43; 1 Stark. 326; Chit. B. 398.

Proof of Presentment, and Notice of Dishonour.] What has been already said on this head, in an action against the drawer, will be, for the most part here applicable: see ante, 290 to 299. It is not necessary to prove any presentment to or demand upon the drawer: Heylin v. Adamson, 2 Burr. 669, 675; Bromley v. Frasier, 1 Str. 441. It is no excuse for not giving notice to the endorser, that the acceptor had no effects of the drawer: Wilks v. Jacks, Pea. Rep. 202. Where a bill was drawn for the accommodation of a remote endorsee, and the names of all the prior parties were lent to him, it was holden in an action against one of those parties, an endorser, that the latter was entitled to notice of dishonour; because, upon paying it, he would be entitled to sue such endorsee for repayment: Brown v. Maffey, 15 East, 216. Proof of a payment of part, or a promise to pay after full notice of the laches of the holder, dispenses with the proof of a due presentment, protest, and

notice, as it admits all these facts, as well as the right of the holder to sue, Taylor v. Jones, 2 Camp. 105; * Wilks v. Jacks, [*300] Pea. Rep. 202; like in an action against the drawer, ante, 295, n.; and see what promise is sufficient, ante, 296. It has, however, been considered, that although a drawer of a bill may, by circumstances impliedly waive his right of defence, founded on the laches of the holder, yet it must be proved that an endorser has expressly waived it; Borrodale v. Lowe, 4 Taunt. 93, Chit. B. 239; and, in these cases, it is to be left to the jury to say whether, under the circumstances, the deft. had notice, at the time of his promise or application, that there had been laches in the presentment, &c.: Hopley v. Dufresne, 13 East, 275; Horford v. Wilson, 1 Taunt. 15. It seems that, at all events, plt. must prove a demand on the acceptor : 5 Esp. Rep. 265. The following letter from the endorser has been held not to waive the want of notice: "I cannot think of remitting till I receive the draft: therefore, if you think proper, you may return it to T. and Co., if you think me unsafe :" 4 Taunt. 93.

Proof under Common Counts.] As to what plt. may prove under the common counts, to entitle him to a verdict, see ante, 278.

ACCOMMODATION ACCEPTOR AGAINST DRAWER.

The handwriting of deft., as drawer, must be proved, as also the payment by the plt., or some special damage arising from his being obliged to pay the bill, or costs of imprisonment, &c.: Chilton v. Wiffen, 3 Wils. 12; Hopley v. Dufresne, 13 East, 275. But, to entitle him to recover special damage, there must be a special count, stating it: 3 East, 169. Plt. must also prove the want of consideration: Vere v. Lewis, 3 T. R. 183. Proof of a receipt at the back of the bill, in the handwriting of the party entitled to demand payment, will be sufficient evidence of the acceptor's having paid the bill: Pfiel v. Van Buttenburg, 2 Camp. 439. A general receipt, on the back of the bill, will be sufficient prima-facie evidence of payment: Scholey v. Walsby, Pea. Rep. 25. But, if the bill be produced from the custody of the acceptor, it will not be prima-facie evidence of payment, unless it be also proved to have been in circulation after it had been accepted: Chit. B. 410, a. Nor is payment to be presumed from a receipt endorsed on the bill, unless it be shown to be in the hand-writing of a person entitled to demand payment: 2 Camp. 439. There is no occasion to prove the actual payment of costs, as the plt.'s liability, by having incurred them, is sufficient: Bullock v. Lloyd, 2 C. & P. 119. In an action by bankers, to recover the amount of a bill of exchange, accepted by the deft., payable at their house, and paid by them after it was endorsed, they are bound to prove the endorsement by the payee and the deft.'s acceptance, and their payment: Foster v. Clements, 2 Camp. 17. See post, "Indemnity," "Guarantee."

Evidence for Defendant.

Under the general issue, the deft. may give any evidence, disproving plt.'s case in general, and that he is not liable on the bill. The usual grounds of defence are ante, 258.

If there be any variance in the statement of the bill, and plt. cannot resort to the common counts, he will be non-suited: as to such variance, see ante; as to what may be given in evidence under the common counts, ante.

STAMP.] A bill of exchange cannot be given in evidence, 1 B. & P. N. R. 30; nor is it in any manner available, unless it be duly stamped, that is, not only with a stamp of the proper value, but also with [*301] a stamp of the proper denomination, or the peculiar stamp appropriated to this species of instrument by the legislature: Selw. N. P. 313.

It is, therefore, an usual ground of defence, that the bill has not a proper stamp, according to the table of stamps under 55 G. 3, c. 184.

A bill, or note, made abroad, must be stamped according to the law of the country where it is made: Alves v. Hodgson, 7 T. R. 241; Phil. Ev. 488. Deft. must, however, prove that a stamp was necessary by the law of such country; and, for this purpose, an authenticated copy of the law of such country ought to be produced, ib., Buchanan v. Rucker, 1 Camp. 65; and no English stamp is, in the case of such foreign bill, necessary. And a bill sketched out and accepted here, and transmitted to a person abroad for his signature as drawer, is a foreign bill, and does not require an English stamp: Bochen v. Campbell, Gou 56. And, where a bill was drawn in Ireland, and blanks left for the date, sum, time when payable, and the name of the drawee, and transmitted to England, where it was completed and negotiated, it was held, that this was to be considered as a bill of exchange, from the time of signing and endorsing it in Ireland, and that an English stamp was not necessary: Smith v. Mingay, 1 M. & S. 87. So, where a bill of exchange was drawn in Jamaica, upon a stamp of that island, with a blank for the payee's name, and transmitted to England, where a bonafide holder filled in his own name as payee, it was considered that no English stamp was necessary. Crutchley v. Mann, 5 Taunt. 529; 1 Marsh, 29, s. c. But, if a bill, however, be drawn in England, though dated abroad, it cannot be enforced here without an English stamp: Jordaine v. Lashbrooke, 7 T. R. 601; Abraham v. Dubois, 4 Camp. 269.

Where it is objected that a bill, purporting to have been made abroad, was made in England, and therefore required a stamp, it will be insufficient merely to prove that the drawer was in England at the time the bill bears date, but the fact must be established by more positive evidence: Abraham. Dubois, 4 Camp. 269.

But a Foreign Bill of exchange drawn in, but payable out of Great Britain, if drawn singly, and not in a set, the same duty is payable as on an inland bill of the same amount and tenor. As to foreign bills drawn in sets, according to the custom of merchants, see the tables under 55 G. 3, c. 184; as to the sums payable for every bill of each set, Bayl. 75.

A bill properly stamped, and put into circulation, and afterwards taken up by the drawer, may be circulated again without a fresh stamp, as it continues negotiable till it has been paid or discharged by the acceptor: p. Ld. Ellenb., Callow v. Lawrence, 3 M. & S. 97.

What Alteration of a Bill requires a New Stamp.] If a complete bill be altered in a material point after negotiation, or after it is due, though before negotiation, a fresh stamp is necessary, Bowman v. Nichol, 1 Esp. Rep. 81, 5 T. R. 537; and, though with the consent of all parties, if it has once issued: Wilson v. Justin, cited Bayl. 89. An alteration, though by a mere stranger, will vitiate the bill: Master v. Miller, 4 T. R. 320; 2 H. Bl. 141. Altering the date or sum, Waltar v. Hastings, 4 Camp. 223, 1 Stark. 215, Outhwaite v. Limsley, ib. 179, Bowman v. Nicholl, 5 T. R. 537, time for payment, or inserting words, rendering a bill or note (Kershaw v. Cox, 3 Esp. Rep. 246) negotiable, which was not so originally, or inserting words in a bill or note, originally expressed to be for value received, generally stating such value to have been received on a (Knill v. Williams, 10 East, 431) particular account, is a material alteration, and makes a new stamp necessary. And, where the drawer of a bill of exchange accepted generally, since 1 and 2 G. 4, c. 78, added the words, "payable at Ransom and Co., bankers, London," without the knowledge of the acceptor, and then endorsed it for valuable consideration, the bill being over due, and the endorsee privy to the alteration, it was held that the alteration was in a material part of the bill, as the right of an [*302] endorsee to sue his endorser would, according to the altered bill, be complete, upon default made at the banker's, and notice thereof; whereas, in truth, the acceptor, not having in reality undertaken to pay there, would have committed no default by such non-payment: Macintosh v. Haydon, 1 R. & M. 362; see 1 Camp. 82, n. But, if the alteration was merely to correct a mistake, and in furtherance of the original intent of the parties, as inserting the words "or order" in a bill intended to be negotiable, it will not require a new stamp: Cox v. Kershaw, 3 Esp. Rep. 246. So, a mistake in the date may be corrected: Bayl. 92; Jacobs v. Hart, 2 Stark. 45; Kennersley v. Nash, 1 Stark. 452; Walton v. Hastings, ib., 215. And, where a bill had been dated by mistake 1822 instead of 1823, and the agent of the drawer and acceptor, to whom it had been given to be delivered to the endorsee, without their knowledge or consent, corrected the mistake, it was held that such alteration did not vacate the bill: Brutt v. Picard, R. & M. 37. Inserting a mere memorandum, to say where a bill is to be payable, if it give a right direction, does not require a new stamp: Trapp v. Spearman, 3 Esp. Rep. 57. The introduction of words which do not affect the responsibility of the parties, after the bill has been accepted, is immaterial: Marson v. Petit, 1 Camp. 82, n.

"A bill is prima-facie to be considered as issued, as soon as it is passed away by the drawer or maker, Walton v. Hastings, 4 Camp. 223, 1 Stark. 215, or accepted by the drawee:" Bayl. 93; Tidmarsh v. Gower, 1 M. & S. 735. An exchange of acceptances is a sufficient negotiation to render a new stamp necessary, Cordwell v. Martin, 1 Camp. 79, 180, b. 5, 9 East, 190; and so is the delivery to the drawer of a bill drawn for his accommodation, and payable to his own order: Calvert v. Roberts, 3 Camp. 342. And the alteration of a bill by the drawee, after it has been drawn and endorsed, and before it is accepted, postponing the time of payment, renders the bill void: Outhwaite v.

Luntley, 4 Camp. 180.

But an accommodation bill is not issued so, as to make an alteration fatal, until it is in the hands of a person entitled to treat it as a security available in law: Downes v. Richardson, 5 B. & A. 674. A bill altered before negotiation, without the consent of the acceptor, may be enforced against him, if he assent to the alteration: ib.; Kennersley v. Nash, 1 Stark. 452; Jacobs v. Hart, 2 Stark. 45.

Where the alteration is apparent on the face of the bill, on its production in evidence it lies on the holder to prove that the alteration in the bill was made before negotiation: Johnson v. D. Marlborough, 2 Stark. 313. But proof that it was in the drawer's hands after it was accepted, will be prima-facie evidence for that purpose: ib.

A protest must be stamped: Sel. 312.

INCAPACITY OF PARTY.] A bill cannot properly be made or endorsed by, nor can it be properly addressed to, any person incapable of making himself responsible for the payment; nor can they be properly made payable or endorsed to any person incapable of suing. Therefore, it is a good ground of defence for the deft. to show that he was an infant, whether he be sued as maker or endorser of a bill, if it be in the course of trade, Williams v. Harrison, Carth. 160, 3 Salk. 197; but not if it were drawn, endorsed, or accepted, for necessaries: Williamson v. Watts, 1 Camp. 552. And, if an infant draw a bill to his own order, and endorse it, and the drawee accept, the acceptance will bind the drawee, and he will be compellable to pay the endorsee; because, by accepting, he precludes himself from disputing the competence of the drawer: Taylor v. Croker, 4 Esp. Rep. 187; Bayl. 39. But it is an unsettled point whether an infant first endorsee can, by such endorsement, give currency to a bill of exchange, so as to entitle the holder to

sue on it; though, indeed, in a case where the acceptor knew [*303] the payee and endorsee was an infant, the court held him lia

ble: Jones v. Darch. 4 Price, 300. As an infant is capable of suing, he may be payee and endorsee; and an objection to his infancy, when he sues as such, will be unavailable: Teed v. Elworthy, 14 East, 210; Warwick v. Bruce, 2 M. & S. 205; 6 Taunt. 118. The drawing, endorsing, or accepting, a bill by an infant is not void, but only voidable; therefore, his ratification, after he comes of age, will be binding on him: Bayl. 40; Gibbs v. Merrill, 3 Taunt. 307; 2 B. & C. 824; 4 D. & R. 545; Taylor v. Croker, 4 Esp. Rep. 187; post, "Infancy."

Coverture, when established, will also be a sufficient ground of defence; as, a married woman cannot be a party to a bill of exchange, so as to charge herself to liability in a court of law, although she be living from her husband, and have a separate maintenance secured to her by deed, Marshal v. Rutton, 8 T. R. 545; and, though she live apart from her husband, in a state of adultery, and there exist a valid divorce, a mensa et thoro, Lewis v. Lee, 3 B. & C. 291; and a feme coverte, sole trader, in London, is not liable to be sued as such, in the courts at Westminster Beard v. Webb, 2 B. & P. 93. Where a husband, however, has been abroad, and not heard of for seven years, the wife will be liable, as it shall be presumed he is dead: 2 Camp. 113, 273. Or, if an alien husband never has been in this country, and his wife reside here,