Bills of Exchange.

the defendant, and thereby required the defendant to pay to the said E. F., or order, dollars, two months after the date thereof, which period hath now elapsed; and the defendant then and there accepted the said bill, payable at [Messrs. G. & H., Brokers, Cincinnati, and not otherwise or elsewhere:] and the said E. F. then, and at said county of [venue] indorsed the same to one I. K., who then and there indorsed the same to one L. M., who then and there indorsed the same to the plaintiff; and the defendant then and there promised the plaintiff to pay him the amount of the said bill, according to the tenor and effect thereof, and of the said acceptance and indorsements; but neither the defendant nor the said Messrs. G. & H., nor any person or persons on behalf of the defendant, did or would pay the said bill, or any part thereof, according to the tenor and effect thereof, and of said acceptance, or otherwise, although the said bill was presented for payment(x) at the said Messrs. G. & H., Brokers, Cincinnati, aforesaid, that is to say, at [&c.] on the day when it became. due, [of all which the said defendant then and there had due notice.(x)] [Add common counts, and conclude as directed, ante, p. 239, Form No. 1, stating defendant "hath not paid the last mentioned moneys."]

13. Indorsee against Drawer, in such Case.

Commencement, ante, p. 181 to 188.] For that, whereas, the defendant, on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one E. F., and thereby required the said E. F. to pay to the defendant or order, dollars two months after the date thereof, which period hath now elapsed; and the said E. F. then and there accepted the said bill, payable [at Messrs. G. & H., Brokers, Cincinnati, and not otherwise or elsewhere;] and the said defendant then, and at said county of [venue] indorsed the said bill to [one I. K., who then and there indorsed and delivered the same to] the plaintiff; and neither the said E. F. nor the said Messrs. G. & H., nor any person or persons on behalf of the said E. F., did or would pay the said bill, although the same was presented for payment at the said Messrs. G. & H., Brokers, Cincinnati, aforesaid, that is to say, at [venue] the day when it became due; of all which the defendant then and there had due notice. [Add common counts, and conclude as in last Form.]

the promisee's use, the plea is bad for the want of a profert in curia. 17 Mass. 389; 8 Cowen, 271; 17 Jolms. 218; but see dicta, 1 Ohio Rep. 156. The rule as above stated has also been held applicable to a note payable on demand at a particular place. 17 Mass. 390; 15 Pick. 212; see 8 Cowen, 271. As to the averment and proof of presentment at the particular place, in order to

charge the drawer or indorsers, see note (y) to Form No. 14, post.

(x) See preceding note. It will be observed that the bill is made payable at Messrs. G. & H. It is not necessary to aver that the bill was presented to Messrs. G. & H., or that they did not pay, or that the drawee had notice. 13 Eng. C. L. Rep. 376; 6 M. & S. 73.

Bills of Exchange.

14. Indorsee against Drawer, on Bill drawn and accepted, payable at a particular Place.(y)

Commencement, ante, p. 181 to 188.] For that, whereas, the defendant, on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one E. F., and thereby required the said E. F. to pay to the said defendant, or order, in Cincinnati, dollars, two months after the date thereof, which period has now elapsed; and the said E. F. then, and at said county, of [venue], accepted the said bill, payable at Messrs. G. H. & Co.'s, Brokers, Cincinnati; and the defendant then, and at said county, of [venue], indorsed the same to [one I. K., who then and there indorsed and delivered the same to] the plaintiff; and the said E. F. did not, nor did the said Messrs. G. H. & Co., or any person or persons on the behalf of the said E. F., pay the said bill, although the same was presented for payment at the said Messrs. G. H. & Co.'s, Brokers, Cincinnati, aforesaid, that is to say, at [venue] on the day when it became due; of all which the defendant then and there had due notice. [Conclude as in last Form.]

15. Drawer against Acceptor on Bill accepted payable on a Contingency. (z)

Commencement, ante, p. 181 to 188.] For that, whereas, the plaintiff, on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to the plaintiff, or order, dollars, two months after the date thereof, which period has now elapsed; and the defendant then and there accepted the said bill, payable [when he, the said defendant, should have received the debt due to him from G. H.] [ following the words of the acceptance;] and the plaintiff saith, that the defendant afterwards, to wit, on [&c.] at [&c.] received the said debt, to wit, the sum of dollars, so due to him from the said G. H.; and the defendant then and there promised the plaintiff to pay the said bill, according to the tenor and effect thereof, and of the said acceptance thereof. [.Add common counts, ante, p. 216, and conclude as ante, p. 241, Form No. 5.]

16. Indorsee against Drawer, where Notice of dishonor toas not given, but Drawer had no effects in the Drawee's Hands, &c. (a) Commencement, ante, p. 181 to 188.] For that, whereas, the defendant,

(y) See note () supra. When the bill is drawn as well as accepted, payable at a particular place, it seems essential to state the fact as above, and aver and prove presentment there in an action against the drawer or indorsers. 21 Eng. C. L. Rep. 217; and see 14 East 500; 3 Camp. 247.

As to what memorandum, &c., is considered a part of the bill or note, see Steph. N. P. 774, 873. (2) Chit. jun. B. 13.

(a) Chit. jun. B. 57, 50. see notes (p) and (1), supra.

Bills of Exchange.

on [&c.] af [&c.] made his bill of exchange in writing, and directed the same to one E. F., and thereby required the said E. F. to pay to the defendant, or order, dollars, two months after the date thereof, which period has now elapsed; and the defendant then and there indorsed and delivered the said bill to the plaintiff; and the said E. F. did not pay the said bill, although the same was there presented to him on the day when it became due; and the plaintiff avers, that neither at the time when the said bill was drawn, nor at any time afterwards, and before the said bill became due, nor at the time when the same became due and was so presented for payment thereof, as aforesaid, had he, the said E. F., in his hands, any effects of the said defendant, nor was there any consideration for drawing the said bill, or for the acceptance or payment by him, the said E. F., of the amount of the said bill, or any part thereof; nor hath the defendant sustained any damage by reason of his not having had notice of the nonpayment by the said E. F., of the said bill. [A second count, averring notice in the usual form, as ante, p. 242, Form No. 8, may be inserted in the above instance. Insert common counts, and conclude as directed ante, p. 240, Form No. 5.]

17. Against Drawer on Default Payment, where the Drawee could not be found. (b)

Commencement ante, p. 181 to 188.] For that, whereas, the defendant, on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one E. F., by the description and addition of [Mr. E. F., Smith Street, Pimlico,] and thereby required the said E. F. to pay to the defendant, or order,

dollars, two months after the date thereof, which period has now elapsed; and the defendant then and there, at [&c.] indorsed the said bill to the plaintiff; and the plaintiff avers, that afterwards, when the said bill became due and payable, according to the tenor and effect thereof, to wit, on [&c.] and on divers days and times afterwards, due and diligent search and inquiry were made for and after the said E. F., in Smith Street, Pimlico, aforesaid, and elsewhere, in order that the said bill might be presented to the said E. F. for payment thereof; but that the said E. F., could not, on such search and inquiry, or since, be found, nor could his place of abode be discovered, nor hath he at any time since the making of the said bill, hitherto paid the said sum of money, therein specified, or any part thereof; of all which the defendant then, and at said county, had due notice. [Add count, stating a presentment in the usual mode, see ante, p. 242, Form No. 8. Insert common counts, and conclude

as directed ante, p. 241, No. 5.]

(b) Chit. jun. B. 49; 6 Ohio Rep. 55.

Bills of Exchange.

18. Indorsee against Drawer, where Drawee was dead. (c.)

Commencement, ante, p. 181 to 188.] For that, whereas, the defendant, on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to one E. F., [by the description of E. F., Esq., Mill Street, Poplar,] and thereby required the said E. F. to pay to the said defendant, or order, dollars, two months after the date thereof, which period has now elapsed; and the defendant then, and at the county aforesaid, indorsed the same [to one G. H., who then and there indorsed and delivered the same] to the plaintiff: *And the plaintiff avers, that after the making of the said bill, and before the same became due, to wit, on [&c.] at [venue] the said E. F. died, and that, at the time when the said bill became due, ["and at the time this action was commenced," if the fact be so,] no person or persons had proved, or caused probate to be had of the last will or testament of the said E. F., [if any] or become, or qualified as executor or executors thereof, nor had any letters of administration, or letters testamentary, of the estate and effects which were of the said E. F. at the time of his death, been granted to any person or persons, nor had any person or persons administered thereto; and the plaintiff further saith, that the said bill, when the same became due, to wit, on [&c.], was duly presented at Mill Street, Poplar, aforesaid, being the place mentioned in the said bill as the place where the said E. F. resided, or was to be found, and being a place where the said E. F., before, and until his death, was to be met with, to wit, at [&c.] but that no person or persons did, or would, on such presentment, pay the same; and the said E. F., did not, in his lifetime, pay the same or any part thereof; of all which the said defendant then and there had due notice. [Add a count, not noticing the death of the drawee, in the form ante, p. 242, No, 8. Insert common counts, and conclude as directed ante, p. 241, No. 5.]

19. Indorsee against Drawer, where the Defendant dispensed with Pre

sentment. (d)

As in the last form to the asterisk,* except that the address of the drawee need not be stated.] And the plaintiff further saith, that afterwards when the said bill became due, to wit, on [&c.] at [&c.] he, the plaintiff, was ready and willing, in due manner, to present the said bill to the said E. F., for payment thereof, and to demand of the said E. F. payment of the said sum of money, therein specified, according to the tenor and effect thereof, and would accordingly have presented the same to the said E. F., and would have demanded payment thereof, [whereof the said defendant then and there had notice ;] but the said defendant then and there requested the said plaintiff, not to present the

(c) See Chit. jun. B. 49.

(d) See Chit. jun, B. 49, 60; 1 Wentw. 399.

Bills of Exchange.

said bill to the said E. F., for payment thereof, and then and there wholly dispensed with such presentment, and discharged the said plaintiff from presenting the said bill to the said E. F., for payment thereof, and the said E. F. did not pay the same, or any part thereof; of all which the defendant then had notice, to wit, at said county. [Add count similar to Form No. 8, ante, p. 242, and conclude as there directed.]

20. Executor of Drawer against Acceptor, (e) with the Common Count, laying the Promise to the Testator.

Commencement as ante, p. 190, Form 2.] For that, whereas, the said G. H., in his lifetime, to wit, on [&c.] at [&c.] made his bill of exchange in writing, and directed the same to the defendant, and thereby required the defendant to pay to him, the said G. H., or order, dollars, two months [or "days," or "weeks," &c., according to the fact,] after the date thereof, which period has now elapsed; and the defendant then and there accepted the said bill, and promised the said G. H., since deceased, (f) to pay him the amount of the said bill, according to the tenor and effect thereof, and of the said acceptance; and whereas also, the defendant, in the lifetime of the said G. H., to wit, on [&c.] at [&c.] was indebted to the said G. H., in dollars, for the

price and value of goods and chattels, then and there sold and delivered by the said G. H., to the defendant, at his request. [Adding common counts, inserting the words, "the said G. H." instead of the words "the plaintiff."] And the defendant afterwards, in the lifetime of the said G. H., to wit, on [&c.] last aforesaid, at [&c.] in consideration of the premises respectively, promised to pay the said last mentioned moneys respectively to the said G. H., on request; yet he hath disregarded his promises, and hath not paid any of the said moneys, or any part thereof, to the said G. H., in his lifetime, or since his death, to the said plaintiff, executor as aforesaid. To the damage [&c. conclude, adding profert, as antc, p. 190, Form 2.]

21. Executor of Drawer against Acceptor, laying Promises to the Plaintiff as Executor.

Commencement as ante, p. 190, Form 2.] For that, whereas, the said G. H., in his lifetime, to wit, on [&c.] at [&c.] made his certain bill of exchange in writing, and directed the same to the defendant, and thereby required him to pay, to him the said G. H., or order,

(e) This may readily be adapted, with the assistance of the Form ante, p. 242, No. 8, to the case of an action against the drawer, by the executor of the indorser. Of course the presentment

dollars, two months after the date thereof,

and notice to the defendant should be averred as in the latter form.

(ƒ) Must prove on this an acceptance in testator's lifetime; 3 East, 409.