WOOD V. WOOD and WOOD.

Held, that the defendant having accepted it, endorsed by one for himself and the other, could not now dispute it.

Jeffers for defendants. This is a note payable to Farnam and Rogers jointly. The indorsement is, by Farnam for himself, and "Shubael Rogers by his attorney in fact Dudley L. Farnam." The plaintiff was bound to produce the power constituting Farnam attorney in fact; such an agent is made by letter of Attorney, 1 Jac. L. Dic. 169. The words attorney in fact, import a 'specific power for a general or special purpose, and that power ought to have been shown, to entitle the plaintiff to read the note in evidence.

2. When a note or bond is payable to two jointly, one of the payees cannot indorse the note or assign the bond. This case is clearly within the decision of this Court in Stevens v. Bowers 1, Harr. Rep. 16.

The cases cited by the counsel for the plaintiff, do not prove that a joint promissory note constitutes a partnership. The case of Kirby v. Cogswell 1, Caines, 505, was when one partner indorsed the note to himself in the name of the firm. The case of Carvick v. Viekery reported in a note in Doug. 653 was overruled upon a second trial and judgment given for the defendant, as the bill sbould upon principles of law, have been indorsed by both payees.

THE STATE v. ANONYMOUS.

Mr. Scofield, District Attorney for the county of Morris, stated that the defendant had made default at the last Term of the Court of Oyer and Terminer in Morris county, and that it was his duty, as District Attorney to move for a scire facias against the bail, (Elmer's Dig. 456, tit. Recog. 3) but that the defendant

and his bail were all insolvent; and he submitted himself to the direction of the Court in the matter.

BY THE COURT. Let an entry be made in the minutes that on an application being made for leave to sue out a scire facias in this case, it being suggested to the Court that the defendant and his bail are insolvent, and the Court being satisfied of that fact, the Court refused to order a scire facias.

Motion Refused.

Ejectment. Practice.

DEN v. SMITH.

B. Williamson moved for a rule that the Landlord have leave to appear and exchange consent rules at the next term, he being absent on a journey, and the tenant refusing to appear. He also moved for a rule for security for costs, the lessor of the plaintiff being a non-resident.

BY THE COURT. Take a rule for leave to appear and exchange rules in 30 days; and that the plaintiff file security for costs on the rule being exchanged.

CUTLER and al. v. DAY.

Matter of practice.

O. S. Halsted moved for leave to plead the defendant's discharge as an insolvent debtor, since the last continuance.

A. Whitehead contra. There is no evidence before the Court of the defendant's discharge,and if there was, he is now too late : his time for pleading was out, before he obtained his discharge, if he has got one, and the plaintiff is entitled to judgment by default.

Per Curiam. The defendant it is true, was in default before his discharge; but then he had no defence. This is the first opportunity he has had to apply for leave to plead, since he had any matter to present in bar of his imprisonment at the suit of the plaintiff in this action. Let him file his plea, sedente curia.

DEN v. GANOE.

In Ejectment. Amendment.

Mr. Reading moved for leave to amend the declaration by adding a count on a demise by the Lessor and his wife.

Scudder in behalf of Saxton attorney for the defendant, objected, saying that the cause was at issue, and had once been carried down for trial; that this application was in effect, for leave to substitute a new cause of action, and to set up another title.

Reading in reply. It is not intended to set up a new title acquired since the commencement of this action, but only to introduce a new count upon a demise by the lessor and his wife at the same time with that laid in the declaration.

BY THE COURT. Let the amendment be made, but upon payment of costs to the defendant, if he elects to withdraw his plea, and not to appear and plead to the amended declaration. In tha

RICE V. PORTER'S Admrs.

case, he is to be discharged from the consent rule, and judgment to be entered against the casual Ejector only.

Amendment ordered.

JOHN P. RICE, Survivor of WILL1AM CORNELIUS, dec'd. v. the ADMINISTRATRIX and ADMINISTRATOR of JOHN PORTER, dec'd.

Error to Gloucester Pleas.

An order to pay $100 on account of the drawer's share of rent for a fishery, which will be due June 1, 1831, and accepted by drawees when due, is not a bill of exchange, and if it be, the acceptance was conditional, not absolute, which should be declared upon specially, with an averment which must be proved, that the condition has been performed.

This cause was tried in the Gloucester Common Pleas at December Term, 1834, when a verdict was rendered for the plaintiffs below, and a bill of exceptions taken to the opinion of the Court on refusing to non-suit the plaintiff below on the ground of the insufficiency of the evidence produced by them to maintain the issue on their part.

The evidence is fully set forth in the opinion delivered by the Court.

The case was argued at May Term last by

Browning for plaintiff in error.

Wall and R. L. Armstrong for defendant.

HORNBLOWER, C. J. This was an action brought by the administrators of Porter against Rice as surviving acceptor of a bill of exchange, or an order drawn on him and one William Cornelius, since deceased, by William E. Hugg, and accepted by them, in favor of Porter.

The declaration cohtains but one count, in which the instru

RICE V. PORTER'S Admrs.

ment declared on, is called a "bill of Exchange, or an order in writing," averring a general acceptance by the drawees, and that thereby they became liable to pay the sum of money in the said bill of exchange or order in writing, specified, "according to the tenor and effect of the said bill of exchange or order in writing, and of their said acceptance thereof."

The instrument and acceptance, declared on, (as set out in the bill of exceptions) are as follows, viz:

"Gloucester, August 21, 1830. "Messrs William Cornelius and John P. Rice, please pay John Porter, the sum ol 100 dollars, on account of my share of rent for Gloucester Fishery, which will be due June 1st, 1831, and this shall be your discharge for the same."

August 21, 1830. We accept this order, when due.

Whatever may be the proper name of this instrument, whetha bill of exchange, an order in writing, or an appointment to pay so much money out of a particular fund, it had a legal and definite meaning and effect, and if it had not, no action could be maintained upon it. What I mean is, that it was either payable at sight, or at a certain period, or when the rent spoken of should become due. Now if it was payable at sight or on presentation, then a general acceptance by the drawees, made them liable to pay immediately; if at a certain number of days after date or sight, or on a specified dav, then a general acceptance made the acceptors liable to pay according to the tenor and effeet of the draft; but if pay able when the rent became due, then they did not become liable until that event happened. And if the latter was the case, then the plaintiffs ought to have shown by a proper averment in their declaration, that the contingeney on which the defendant's liability was to accrue, had taken place. It is not always sufficient for a plaintiff, when declaring upon a special contract, to set it out in hæc verba; or to say that the party became liable according to the tenor and effect of the contract; but