BILLS OF EXCHANGE. [This count is to be framed like that at the suit of payee, ante, 169, stat- OF INLAND ing that the defendant drew the bill, and showing the indorsements to the plaintiff, as ante, 152 to 155; and that the defendant had no effects in the Indorsee hands of the drawee, as ante, 159.] against drawer or indorser on ticular [Commencement by baron and feme as ante, 95.1-For that whereas default, one G. H. heretofore, and while the said E. was sole and unmarried, to wit, payment on &c. at, &c. made, &c.-[Describe the making and delivery of the bill, at a paracceptance and indorsement, liability and promise to pay the bill to the wife place. while sole, as in the precedent, ante, 144; and when the wife's name is men- Indorsee tioned, say, "whilst she was sole and unmarried." Then add the money against counts on promises to the wife when sole, acccount stated, and breach, as ante, 95.] drawer, payment, where defendant For that whereas the said defendant, heretofore, and whilst the said E. had no was sole and unmarried, to wit, on, &c. at, &c. made, &c.-[Describe the effects in making and delivery of the bill, and indorsements, as supra, and ante, 157, hands of drawee, 152; and then aver, that after the intermarriage of the plaintiffs, the bill By baron was presented for payment, and dishonored, and notice given to defendant, and feme, and that thereby defendant became liable to pay the plaintiffs, in right of the payee, or wife, and promise accordingly; then add the money counts on promises before marto the wife while sole, and breach, as ante, 95, 136.] indorsee riage, against acceptor payee or (i). *For that whereas one S. B. before the intermarriage of plaintiff with one () A. J. to wit, on, &c. at, &c. according to the usage and custom of merchants, By baron duly made her certain bill of exchange, and then and there directed the and feme, same to defendant, by which said bill the said S. then and there requested indorsce, defendant to pay, three months after the date thereof, to A. J. or her order, against - for value received, and delivered the said bill to the said A. which drower or said bill the said defendant afterwards, to wit, on the day and year where bill indorser, aforesaid, at, &c. aforesaid, upon sight thereof, accepted, according to the became due said usage and custom of merchants; and plaintiff avers, that after the mak- after the marriage ing the said bill, and before the same became due and payable, according to the tenor and effect thereof, to wit, on, &c. at, &c. he the said plaintiff inter- [163] married with the said A. J.; by means whereof the said defendant, after the By husintermarriage of the said plaintiff with the said A. to wit, on the day and year where he last aforesaid, at, &c. aforesaid, became liable to pay to the said plaintiff the said married sum of money in the said bill specified, according to the tenor and effect of before the the said bill, and of his the said defendant's said acceptance thereof; and be- bill being so liable, he the said defendant, in consideration thereof afterwards, and came due after the intermarriage of the said plaintiff with the said A. 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 bill specified, according to the tenor and effect of the said bill, and of his the said defendant's said acceptance thereof. band alone, (k). feme on a [Commencement against baron and feme as ante 96.]-For that where- Against as one G. H. heretofore, and whilst the said E. was sole and unmarried, to baron and wit, on, &c. at, &c. made, &c.-[Describe the making of the bill, delivery bill acto payee, and acceptance by E. while sole and unmarried, indorsement to cepted by her, before (h) See ante, 136, and vol. i. 176. (k) See 1 B. & A. 218, showing the correct- her coverness of this form. ture. (i) 1 B. & A. 218. VOL. II. 15 ON INLAND plaintiff, and E's liability and promise to pay, whilst sole and unmarried BILLS OF CHANGE. By surviving partner, payee, or as ante, 149, &c.; and then add the money counts, and account stated by the feme, whilst sole and unmarried, and conclude with the breach, as ante, 97, Lil. Ent. 27. It seems that a count cannot be added on a promise by husband and wife, after the marriage, 1 Taunt. 212.] [Commencement as ante, 91.]-For that whereas one E. F. heretofore and in the life-time of one G. H. since deceased, and whom the sal plaintiff hath survived, to wit, on, &c. at, &c. made, &c.-[Describe the indorsee, making and delivery, acceptance and indorsement, as ante, 152, and then state the liability and promise to pay plaintiff and the said G. H. since deceased in the life-time of the said G. H. according to the tenor of the bill as ante, 145.] against acceptor. [ *164 ] or indor *[Commence the declaration with counts on the original debt, if any By surviv- existed between the defendant and the plaintiff, and his deceased partner ing part with an appropriate breach, as ante, 91, and then proceed as follows:ner, payee And also for that whereas the said defendant, heretofore, and in the life-time of see, against the said G. H. since deceased, and whom the said plaintiff hath survived, to wit drawer or on, &c. at &c. made, &c.-[Describe the making and delivery of the bill, acwhere bill ceptance, and endorsement, as ante, 157, 162, and then aver, that after the death of the said G. H. the bill was presented for payment and refused, and notice given to the defendant, as ante, 157, and then state the liability, and promise to pay plaintiff alone, as ante, 151. Insert the money counts, and ac count stated, on promises to plaintiff alone, with a corresponding breach as ante, 92.] indorser, became due after the death of the deceased partner. acceptor (1). Against a For that whereas one E. F. heretofore, and in the life-time of one G. H surviving since deceased, to wit, on, &c, at, &c. made, &c.-Describe the making, delivery, acceptance by defendant, "and the said G. H. since deceased, in his life-time," and indorsement and liability, and promised by defendant and G. H. since deceased, to pay according to the tenor and effect of the bill, as ante. 144, and then insert common counts on promises by defendant and the deceased, and breach, as ante, 94, and if it be material to give in evidence a cause of action or acknowledgment since the death, add counts, as ante, 94] drawer or Against a For that whereas the said defendant and one E. F. since deceased, hereto surviving fore, and in the life-time of the said E. F. to wit, on &c. at &ç. made, &c.indorser, [Describe the making, delivery, acceptance, indorsement, presentment for where bill payment, dishonor, notice to defendant and E. F. since deceased, and their lidishonored ability, and joint promise to pay on request, as ante, 151, and then insert of the de- counts on promises by both partners, and breach, as ante, 94.] in life-time ceased. drawer or indorser, Against a [If there was any contract between the plaintiff and the defendant, and his surviving deceased partner independently of the bill, begin the declaration with counts thereon, promises by both partners, and breach, as ante 94, to the words "to where bill the damage, &c." and then proceed as follows:1-And whereas also the said defendant and the said E. F. since deceased, heretofore and in the life-time of honored af- the said E. F. to wit, on, &c. at, &c. made, &c.-[ Describe the making and delivery, acceptance, and indorsement, as ante, 157; then state the presenttice the deceased, see 1 B. & Ald, 224, 29. was dis ter the death. (1) There is no occasion to sue the defendant as surviving acceptor, or in any way to no BILLS OF ment for payment, after the death of the said E. F. and notice to defend- ON INLAND ant or survivor, and his separate liability, and promise to pay on request, as EXCHANGE. ante, 162, and then insert common counts on his separate promise, and breach of the last set of promises.] against ac ceptor (m). [Commencement by assignees as ante, 97.]-For that whereas one G. By assignH. heretofore, and before the said E. F. became bankrupt, to wit, on, &c. at, ees of a &c. made &c.-[describe the making and delivery to payee, defendant's ac- bankrupt ceptance, indorsement to E. F. before he became bankrupt, and defendant's liability, and promise to pay him, as ante, 152, and then add common counts on promise to bankrupt, before he became bankrupt, and breach, as ante, 97, and if it be material, to give in evidence a promise of admission since the bankruptcy, add counts, as ante, 99.] drawer or honored af [If there was any contract between the bankrupt and the defendant, inde- By assignpendently of the bill, begin the declaration with counts thereon, on promises ees against to the bankrupt before his bankruptcy and breach, as ante 97, then proceed indorser, as follows:]-And whereas also the said defendant, heretofore, and before the where bill said E. F. became bankrupt, to wit, on, &c. at, &c. made, &c.-[Describe the was dismaking of the bill, delivery to payee, acceptance, and indorsement to E. F. ter the before his bankruptcy, the presentment for payment, after E. F.'s bankruptcy, bankruptand the dishonor and notice to defendant, and then state the defendant's lia- cy. bility, and promise to pay plaintiffs as assignees; and counts for money paid by plaintiffs as assignees, had and received to their use as assignees, account stated with them as such, and breach, as ante, 99] tor or administrator [Commencement as ante, 101.1-For that whereas one E. F. heretofore, By execuand in the life-time of the said G. H. since deceased, to wit, on, &c. at, &c. made, &c.--[Describe the making and delivery, acceptance, and indorse- of payee or ment of the bill, as ante, 152, and then state the liability, and promise indorsee to pay to the deceased in his life-time, according to the tenor and effect against acof the bill, as ante, 144, and add money counts, and accounts stated on promises to the deceased, as ante, 101; then state breach and profert at the suit of the executor, as ante, 102; or at the suit of an administrator, as ante, 110.] ceptor. tor or ad ministrator drawer or *[If there was any debt between the deceased and the defendant, before [166] the bill was given, commence the declaration with counts on promises to By executhe deceased, and the proper breach thereof, as ante, 101, and then pro- tor or ceed as follows:]-And also for that the said defendant, heretofore, and in of payee or the life-time of the said E. F. deceased, to wit, on, &c. at, &c. made, &c. indorsee, [Describe the making of the bill, the delivery, acceptance, and indorsement, against as ante, 152, 162, and then aver the presentment for payment after the death, indorser, and the dishonor and notice, and the consequent liability, and promise to pay where bill plaintiff as executor or administrator, on request, as ante, 151; then add became duo counts for money paid by plaintiff, as executor or administrator, money had death. and received to plaintiff's use in that character, and account stated with plaintiff as executor or administrator, and the breach, and profert applicable to these latter counts, as ante, 102, 103, 109.] [First set of counts, on promise to the testator, and breach, to the words "to the damage, &c." and then proceed as follows:]-And also for that. (m) See ante, vol. i. 10. after the EXCHANGE. By execu tor or ad ministra tor, ON INLAND whereas one G. H. heretofore, and in the life-time of the said A. B. since BILLS OF deceased, to wit, on, &c. at, &c. made, &c.-[ Describe the making, delivery, and defendant's acceptance, and the indorsement to A. B. as ante, 152, and then proceed as follows:]-By means whereof, and according to the said usage and custom of merchants, the said defendant then and there be against ac- came liable to pay to the said A. B., in his life-time, the said sum of money ceptor, on in the said last-mentioned bill of exchange specified, according to the tenor a promise and effect thereof; and being so liable, and the said sum of money in the lastto plaintiff mentioned bill of exchange specified, being and remaining wholly due and unpaid, after the death of the said A. B. to wit, on, &c. (o) at, &c. aforesaid, the said defendant, in consideration of the premises, undertook, and then and there faithfully promised the said plaintiff, as executor as aforesaid, to pay him as executor as aforesaid, the said sum of money in the said last-mentioned bill of exchange specified, when he the said defendant, should be thereunto afterwards requested. to take case out of the statute of limitations (n). [ *167 ] adminis trator of *[Commencement against executor, as ante, 106.]-For that whereas Against an one G. H. heretofore and in the life-time of the said E. F. since deceased, to executor or wit, on, &c. at, &c. made, &c.-[Describe the making, delivery, E. F.'s ac ceptance, indorsement to plaintiff, and E. F.'s liability and promise to pay, acceptor. according to the tenor and effect of the bill, as ante, 152, and add the money counts on E. F.'s promise, and breach, as ante, 107. If it be material to give in evidence a promise by defendant, as executor, add a count on the bill on defendant's promise, nearly as ante, 166, and an account stated, and breach, as ante, 107.] ON FOREIGN Drawer against acceptor of a bill drawn abroad, IV. ON FOREIGN BILLS OF EXCHANGE. For that whereas the said plaintiff, heretofore, to wit, on, &c. (q) in parts beyond the seas, to wit, at [Amsterdam (r)] that is to say, at, &c. (s) according to the usage and custom of merchants, from time immemorial used and approved of, made his certain bill of exchange in writing, bearing date the day and year aforesaid, and then and there directed the said bill of for foreign exchange to the said defendant, by the name and addition of Mr. E. F. merble at chant, London, (t); by which said bill of exchange, he, the said plaintiff, then and there requested the said defendant, at (two) usances, that is to say, at (two) calendar months after the date of the said bill of exchange (u), to coin, paya usances (P). (n) As to the use of this count, see notes, ante, 140; and 3 East, 409; Willes, 29. It is dangerous to insert it or any count on promise to the executors, unless there be some substantive promise to them, as it subjects them to costs in the event of a verdict or nonsuit. See 9 B. & C. 667. Ante, 102. (0) Any day before the title of the declaration will do. (p) Though the bill be in a foreign language, it may be stated in English. Wightw. 9. (q) As to the date see Chitty on Bills, 7th edit. 354.; Bayl. 174.; Ante, 115, 145. (r) As to the place, see Chitty on Bills, 7th edit. 355.; Bayl. 175.; 3 Campb. 304. This need only be inserted when the bill is drawn abroad. (s) The venue in the action. (t) Though usual, it is not necessary, in an action against the acceptor, to state the addi tion, but it is usual to do so where he is misdescribed in the bill, ante, 145, n. (n). (u) When a bill is payable at usance, the length of such usance must be stated on the declaration, see Chitty on Bills, 7th edit. 507, n. (h). 8th edit. 404; Bayl. 184, 185; it may be described concisely as above, or more formally, as note, (r), next page; and it may be better to adopt the latter. As to usances in general, see Chitty on Bills, 7th ed. 266; and as to forms of averment, 1 Wentw. 294, 206, 319.; Chit. on Bills, 7th edit. 507, n. (h). 8th edit. 404, 582.; Bayl. 172. BILLS OF pay that, his second bill of exchange, (first and third of the same tenor and ON FOREIGN date not paid (w) to the said plaintiff (x), or order, the sum of 700 ducats, EXCHANGE. value received (y); which said bill of exchange he the said defendant afterwards, to wit, on the day and year aforesaid, (z), to wit, at, &c. (venue) aforesaid, upon sight thereof, accepted, according to the said usage and custom of merchants; by means whereof, and according to the said usage and custom of merchants, the said defendant then and there became liable to pay to the said plaintiff the said sum of money in the said bill of exchange specified, according to the tenor and effect of the said bill of exchange, and of the said defendant's said acceptance thereof; 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 bill of exchange specified, according to the tenor and effect of the said bill of exchange, and of his the said defendant's said acceptance thereof. And the said plaintiff avers, that the said 700 ducats, in the said bill of exchange mentioned, at the time of the making of the said bill of exchange, and also at the time when the same became due and payable, according to the tenor and effect thereof, were and still are of great value, to wit, of the value £— of lawful money of Great Britain, to wit, at, &c. aforesaid (a). pro The like in *[This precedent may be the same as the last to the end, and then [ *169 ] ceed with the following averment :1-And the said plaintiff, in fact, saith, another that an usance mentioned in any bill of exchange, drawn at London and pay- form, averable at Venice, is, and at the several times aforesaid was, three months from ring more the date of the said bill, to wit, at, &c. (venue) aforesaid. fully the duration of an usance Drawer where bill paid supra and draw [After stating the drawing of the bill, acceptance, delivery to payee, at the end and his indorsement to G. H. proceed as follows:]-And the said plain- (b). tiffs in fact, say, that the said G. H. afterwards, to wit, on, &c. at, &c. against caused the said bill, so accepted and indorsed as aforesaid, to be shown and acceptor, presented to the said defendant for payment thereof, and then and there required the said defendant to pay the said sum of money therein mentioned, ac- protest by cording to the tenor and effect of the said bill, and of his said acceptance there- a third of, and of the said indorsement so made thereon as aforesaid; but the said person, time when the said bill was so presented to him for payment thereof as afore- er er obliged said, or at any time whatsoever, did not pay to the said G. H. the said sum to pay him of money mentioned in the said bill, but then and there wholly refused so the princido, and therein wholly failed and made default; whereupon the said G. H. pal money, afterwards, to wit, on, &c. at, &c. duly caused the said bill of exchange to es (c). be protested for the said non-payment thereof, according to the said custom; and afterwards, to wit, on, &c. at, &c. according to the said custom, certain persons residing, trading, and using commerce within this kingdom, to wit, at, &c. by and under the name of Messrs. B. B. and Co. appeared before (w) As to this allegation, see Chitty on Bills, 7th edit. 507, n. (i) 8th edit. 592; n. (i); Bayl. 171, 180. (x) It is not in general necessary to state the addition of the drawer or payee. (y) In an action by the drawee, the delivery of the bill is not to be stated, 5 East, 476. (z) If the acceptance be dated on a particular day, state it accordingly. (a) When a bill is payable in foreign mon- (b) As to this averment, ante, 167, n. (f). and charg |