afterwards, to wit, on the same day and year last aforesaid, to wit, at, &c. had notice; on demurrer, the declaration was holden bad. In the preceding case it must be observed, that the payment was demanded, or at least stated in the declaration to have been demanded, after the proper time. In Rushton v. Aspinall, Doug. 679. on a bill payable three months after date, the payment was stated in the declaration to have been demanded before the proper time, viz. on the day when the bill was drawn, and it was considered as a nullity., If the bill be endorsed by procuration from the payee, care should be taken how such endorsement is stated in the declaration; for in a case where it was stated in the declaration, that A. drew a bill payable to B., and that B. endorsed it, his own hand-writing being thereunto subscribed; but, when the bill was produced, it appeared to have been endorsed by I. S., by procuration from B.; the variance was holden to be fatal. But where the declaration stated that the payee endorsed the bill " his own proper hand-writing being thereunto subscribed," and it appeared that the endorsement was in the hand-writing of the payee's wife, but that the defendant, when acquainted with this circumstance, promised to pay the bill; Lord Ellenborough said, he thought it would be too narrow a construction of the words own hand, to require that the name should be written by the party himself, and he was inclined to think, it would be enough to shew the name written by an authorized agent; but that, at any rate, the defendant could not be allowed to take the objection, after a promise to pay, made with a knowledge of all the facts.-In Heys v. Heseltine and anothere, where it was averred that the defendants accepted the bill, and the acceptance was by an agent thus, "for Heseltine and Co. John Wilson;" Lord Ellenborough was of opinion, that the evidence supported the declaration; observing, that if the defendant accepted the bill by an agent, in contemplation of law, they accepted it themselves; and it was a general rule in pleading, that facts might be stated according to their legal effect. In a case where the endorser's name had been put on the paper before the bill was drawn, and it was stated in the declaration that the endorsement was made after the drawing the bill, the variance was holden to be immaterial. So c Levy v. Wilson, 5 Esp. N. P.C. 180. Ellenborough C. J. d Helmsley v, Loader, e Camp, N. P. C. 450. e 2 Camp. N. P. C. 604. f Russell v. Langstaff, Doug, 514. where the endorsement was stated to have been made before the bill became due, and it appeared in evidence to have been made after the bill became due, this was holden not to be a material variance. When the action is brought between the immediate parties to the bill, it is usual to subjoin such counts as will embrace the consideration for which the bill has been given; for as the bill does not merge the original demand, if the plaintiff fail in substantiating in evidence the special count, he may resort to evidence on the common counts (62). Proceedings subsequent to the Declaration. The plaintiff having declared, the defendant, if he has not any defence, either compromises the action by paying, or giving g Young v. Wright, 1 Camp. N. P. C. 139. (62) In Alves v. Hodgson, 7 T. R. 241. where the plaintiff had declared specially on a written contract made in Jamaica, and on a quantum meruit, and was prevented from establishing the special count, because the contract, by the laws of the island of Jamaica, was void for the want of a stamp; it was holden, that he might recover on the quantum meruit. So where a promissory note had been given for money lent, which when produced in court was unstamped. Lord Kenyon C. J. permitted the plaintiff to recover on a common count for money lent, by proving that when the money, for which the note had been given, was demanded of the defendant, he acknowledged the debt. Tyte v. Jones, Midd. Sittings, 1788. 1 East's R. 58 n. (a.) Wilson v. Kennedy, 1 Esp. N. P. C. 245. S. P. In cases of this kind, if the defendant call for a particular of the plaintiff's demand, the causes of action in the general counts ought to be stated in the particular, otherwise the plaintiff will not be permitted to go into evidence on them. Wade v. Beasley, 4 Esp. N. P. C. 7. Kenyon C. J. If the plaintiff's particular conveys the requisite information to the defendant, however inaccurately it may be drawn up, it is sufficient, unless the defendant will undertake to swear that he has been misled by the inaccuracy. Day v. Bowyer, Sittings after H. T. 1806. Ellenborough C. J. 1 Campb. N. P. C. 69 n. And although the general rule is, that the plaintiff, who has delivered an imperfect particular, shall be restricted in his evidence, and not permitted to recover any thing ultra the contents of such particular, yet if the defendant, in attempting to defeat the restricted claim of the plaintiff, gives him a better case than he was at liberty to make for himself, he will be entitled to a verdict for all that is proved due to him: what he could not have insisted on as a right he may receive as a boon. Harst v. Watkis, M. T. 48 G. 3. B. R. Ellenborough C. J. 1 Camp. N. P. C. 68. security for the debt and costs; or he lets judgment go by default. If the holder commences one action against the drawer, and another against the endorser, the court will stay all the proceedings upon payment of the amount of the bill and the costs of the two actions, without regarding the costs which may have been incurred in actions brought by the holder against any other parties to the bill. But when the application for staying proceedings comes from the accep tor, who is the original defaulter, the court will not regard it, except upon payment of the amount of the bill and costs in all the actions'. When the defendant suffers judgment to go by default, the plaintiff must, before he is entitled to final judgment and execution, ascertain the amount of the debt. Formerly this was done by executing a writ of inquiry of damages; but of late years, in the courts of King's Bench and Common Pleas', in actions upon promissory notes and bills of exchange, where it appears on the face of the declaration that the actions are brought on the notes or bills", and the money mentioned therein is not foreign money, it is usual to apply to the court for a rule to shew cause why it should not be referred to the master in B. R. and prothonotary in C. B., to see what is due for principal and interest, and why final judgment should not be signed thereon, with out executing a writ of inquiry, which rule is made absolute on an affidavit of service, unless good cause be shewn to the contrary. In vacation time, application may be made to one of the judges of B. R. or C. B. at chambers. N. The rule ought not to be applied for on the day of signing inter locutory judgment, but some day after". It is worthy of remark, that the Court of Exchequer still adheres to the ancient practice of executing a writ of in quiry of damages upon a judgment by default, in actions on bills of exchange and promissory notes. Where the bill of exchange is for foreign money, e. g. for Irish money, the court will not permit the master to Smith v. Woodcock, 4 T. R. 691. i Admitted per Curiam, in Smith v. k Shepherd v. Charter, case on a bill of exchange, B. R. June 4th, 1791. 4 T. R. 275. I Rashleigh v. Salmon, case on a pro- o Maunsell v. Lord Massareene, 5 T. ascertain the value. In this case, therefore, the plaintiff must have recourse to a writ of inquiry. Upon the execution of which it is now holden", notwithstanding former decisions to the contrary, that it is not in any case necessary to prove the bill of exchange, the bare production of it being sufficient; for by suffering judgment to go by default, the defendant admits the cause of action to the amount of the bill. The bill, however, must be produced to the jury, in order that they may see whether or not any part of it has been paid. Evidence. In an action by the endorsee of a bill against the acceptor, it is not necessary for the plaintiff to prove the hand-writing of the drawer, for when a bill is presented for acceptance, the acceptor is supposed to look at the hand-writing of the drawer, and on that account he is precluded from disputing it afterwards, and cannot give in evidence even a forgery of such hand-writing (63). But the hand-writing of the first endorser must be proved, because the acceptor is not. supposed to look any further than the hand-writing of the drawer. Action by the endorsee against the endorser of a bill of exchange. The declaration stated several endorsements p Green v. Hearne, a T. R. 301. q Snowdon v. Thomas, 3 Wils. 155. 2 BI. R. 749. S. C. r Jeny's v. Fawler, Str. 946. coram Raymond C. J. London Sittings. Per Buller J. 1 T. R. 655. S. P. Smith v. Chester, 1 T. R. 654. Cooper v. Lindo, B. R. London Sittings after M. T. 52 G. 3. S. P. as to handwriting of and endorser, being alleged in declaration. t Critchlow v. Parry, B. R. 2 Camp. N. P. C. 182. (63) A bill of exchange was shewn to the defendant, whose name appeared on the bill as acceptor, and he was asked whether it was his hand-writing, he said it was, and that the bill would be duly paid: Lord Ellenborough C. J. held that this accredited the bill, and the plaintiff having been thereby induced to take it, the defendant could not set up as a defence that his name, as written on the bill, was a forgery, Leach v. Buchanan, 4 Esp. N. P. C. 226. A forged bill was drawn upon the plaintiff, which he accepted and paid to an innocent endorsee, who had given a valuable consideration for the bill; on discovering the forgery, the plaintiff brought an action for money had and received, to recover back the money; it was holden, that the action would not lie; Lord Mansfield C. J. observing, that it was incumbent on the plaintiff to have been satisfied as to the drawer's hand-writing before he accepted the bill. Price v. Neal, 3 Burr. 1354. 1 Bl. R. 390. S. C. Ꮓ prior to that of the defendant, which was immediately to the plaintiff. A question arose, whether upon proof of the defendant's hand-writing, it was necessary to prove the hand-writing of any of the prior endorsers, and particularly that of the original payee. The plaintiff's counsel contended, that the defendant's endorsement admitted all antecedent endorsements; that even if they were forged he would be liable; that he was to be considered as the drawer of a new bill of exchange, and that his contract was very different from that of the acceptor, who only undertook to pay to the payee or his order, and against whom, therefore, a title through the payee must be established. Lord Ellenborough was of this opinion, and the plaintiff had a verdict. Action for money" paid by plaintiffs, Messrs. Forsters, Lubbock, and Co. bankers for defendant. A bill of exchange was drawn on defendant, by one Hanley, payable to his own order, which defendant accepted, " payable at Forsters, Lubbock, and Co. London," the plaintiffs; when this bill was presented at the plaintiffs' house, it was paid by them, and the action was brought to recover the sum so paid. Plaiutinis proved the acceptance, and the fact of payment, and contended they were entitled to recover without proving the endorsement of the drawer, which was upon the bill at the time it was paid by them, alleging that the bill, when presented, being prima facie in a negotiable state, they were authorized to pay it, and were not bound to inquire into the title of the holder; but Lord Ellenborough ruled that it was necessary to prove the first endorse ment. In an action against the drawer of a bill, it was holden, that payment of money into court, upon the whole declaration, was such an admission of the cause of action as superseded the necessity of proving the hand-writing of the drawer. Where notice of the dishonour of a bill has been given by letter', a copy of the letter cannot be given in evidence to prove such notice, unless there has been notice given to produce the original. In an action against the drawer of a foreign bill, the protest being part of the custom of merchants with respect to u Forster v. Clements, B. R. London Sittings after H. T. 1809. 2 Camp. N. P. C. 17. x Gutteridge v. Smith, 2 H. Bl. 374. y Langdon v. Hulls, 5 Esp. N. P. C, 156. z Gale v. Walsh, 5 T. R. 239. |