under their hands of that date, jointly and severally promised the plaintiff to pay him, or order, the sum of &c. for value received, or surrender the body of D to the action of the plaintiff, brought against said D. Now the plaintiff avers, that the said B and C or either of them, have not paid the said sum &c., nor have they, or either of them, surrendered the said D to the action of the plaintiff, according to the tenor of said note, though thereto, on &c., at &c., requested, but wholly refuse and neglect so to do. And for that one D, on &c., at &c., being indebted to the plaintiff in &c., for goods &c., the plaintiff for the speedier recovery and obtaining that debt, on &c., at &c., commenced his suit against said D, and declared, in a plea of the case to the damage of the plaintiff, and thereupon caused the said D to be arrested by the sheriff of &c., and the said D, being so arrested and in his custody, the said B and C, on &c., at &c., had notice thereof, and then and there, in consideration that the plaintiff, at the special request of the said B and C would discharge the said D out of the custody of the said sheriff, promised, jointly and severally, to pay the plaintiff or order the sum of $-, on demand for value received, or surrender the body of said D to the custody of said sheriff to the same suit; and the plaintiff says, that, giving credit to the said promise of the said B and C, and at their request, he, the plaintiff, did then and there discharge the body of said D out of the custody of said sheriff, and then and there gave notice thereof to the said B and C, yet the said B and C, or either of them, though often requested, have never paid the said sum, nor have they, or either of them, surrendered the body of said D to the custody of said sheriff, according to their promises aforesaid, though on &c., at &c., thereto especially requested, but deny so to do. 3 Ld. Raym. 96.

6. Orders.

Payee v. Acceptor, on an order accepted.

For that one C, at &c., on &c., drew his order in writing, under his hand of that date, directed to the said D, therein and thereby requesting the said D to pay the plaintiff, or his order, the sum of &c. on demand, for value received of the plaintiff by the said C, and charge the same to the said C's account; and the plaintiff thereafterwards on the same day, presented the said order to the said D for his accept

ance, who then and there duly accepted the same, whereby he became liable, and in consideration thereof promised the plaintiff to pay him that sum on demand; yet, &c.

Payee v. Drawer, on order not accepted.

For that the said D, at &c., on &c., for value received of the plaintiff, drew his order in writing, under his hand of that date, directed to one C, therein and thereby requesting the said C to pay the plaintiff, or his order, the sum of &c., on demand, and charge the same to the account of the said D; and the plaintiff on &c., at &c., presented the said order to the said C for his acceptance and payment, which the said C then and there refused to do, of which the said D then and there had due notice, and was requested to pay the same, whereby he became liable, and in consideration

&c.

Against partners in favor of payee; on order drawn on a bank and not accepted.

For that the said D and E, at &c., on &c., by the name and firm of D and E, for value received of the plaintiff, drew their order in writing, on J K, cashier of the Essex Bank, and thereby directed him to present their note, made to the plaintiff for the sum of &c., signed by the said D and E, to the directors of the said bank, and thereby ordered and requested them to pay the plaintiff that sum; and the plaintiff avers, that said order was presented by said cashier to said directors, who refused to pay s id sum or accept said order, whereof the said D and E there, on &c., had notice, whereby the said D and E became liable to pay the same sum to the plaintiff, on demand, and being so liable &c. N. DANE.

NOTE. A check must be presented for payment, whether the drawee has received funds or not; but if the drawer has withdrawn the funds, it seems otherwise.

A check should be presented within the business hours of the day after that in which it is received. This is the rule adopted in England. See Chitty on Bills, 323.

If a check which payee has lost, is paid before it bears date, the banker is liable to pay it again to the payee, if it is contrary to the regular course of business to pay checks before they bear date. Ibid. 149.

A bank, which has paid a forged check to a bona fide holder cannot recal the payment. 4 Dall. 234.

A draft payable to A B or bearer, but addressed to no one, may be recovered against the drawer, by any bona fide holder for a valuable consideration, in an action for money had and received. 3 Pick, 18. See

also 1 Mason, 243. Quære, what privity is there in this case, to ena ble the holder to recover on the money counts against the drawer? But in New York it is settled, that a note payable to A B, or bearer, may be given in evidence, in an action by the holder against the maker, under the money counts. See 12 Johns. R. 90.

On an order (indorsed on the back of a note) requesting drawee to pay the note, and accepted by him.

For that one D D, son of the said D, at a place called Philadelphia, to wit, at S aforesaid, on &c., by his note under his hand of that date, for value received of the plaintiff, promised the plaintiff to pay him, or his order, at S aforesaid, the sum of £1300 [of our then lawful current money commonly called continental currency, of the value of £81 78. 10d. of our now lawful money,] at or by the &c. day of &c., then next but now past, with lawful interest therefor until paid; and thereafterwards on the same day, the said D D, the son, being indebted to the plaintiff in manner aforesaid, in the said sum, for the payment of the same, drew his order in writing under his hand, on the back of the said note directed to the said D first named, his father, and therein and thereby requested the said D, the father, to pay to the plaintiff the sum aforesaid, according to the tenor of the same note; and the plaintiff afterwards, to wit, on &c., at S aforesaid, presented the said note, with the said order thereon, to the said D, the father, for his acceptance and payment of the said order, and the said D, the father, then and there accepted the said order, and promised the plaintiff payment thereof, on demand; yet though requested, the said D, the father, has never paid the said order or any part thereof, but unjustly refuses so to do.

And for that afterwards, on the same &c. day of &c. aforesaid, at S aforesaid, the said D, the father, being indebted to the plaintiff in another sum of [£150, lawful money] for so much money before that time, had and received by him to the plaintiff's use, in consideration thereof then and there promised the plaintiff to pay him that sum on demand; yet though requested, the said D, the father, has never paid the same, but unjustly refuses so to do. Nichols v. Adams. T. PARSONS.

7. Bills of Exchange.

Payee v. Acceptor.

For that one A B, on &c., at &c., made his certain bill of exchange, in writing of that date, directed to the said D,

and thereby requested the said D to pay to the said plaintiff, or his order, the sum of &c., three months after the said date, for value received, and then and there delivered the said bill of exchange to the plaintiff, which said bill of exchange the said D thereafterwards, viz. on &c., at &c., aforesaid, upon sight thereof accepted; by means whereof the said D, then and there became liable, and in consideration thereof, then and there promised the plaintiff, to pay him the sum of money specified in the said bill of exchange; according to the tenor and effect of the said bill of exchange, and of his acceptance thereof as aforesaid; yet though the said three months have long since elapsed, and though often requested &c.

NOTE. If the bill bears a wrong date by mistake, instead of," of that date," say, &c. " bearing date by mistake the &c. day of &c., but intended to be dated the &c. day of &c.," and insert another count, as if the mistaken date was the true one.

If the bill is drawn by an agent, say, "for that one A B, by C D, his agent, in that behalf," on &c., at &c.

A mistake in the name of the drawer, in an action against the acceptor, or an indorser, will be a fatal variance. 3 Bos. and P. 559.

Where a bill or note bears no date, but is payable at a certain time after date, it may be declared on, as made on any day, when it can be proved to have been in existence; but it should not be alleged to bear any date, because from the variance, when the bill is offered in evidence, it will not appear to be the bill declared on. See 2 Show. 422, 3 Bos. & P. 173. For the same reason, if a bill, dated at a particular place, is declared on, as dated at another place, the variance will be fatal.

It is best to omit the usual expression, "his proper hand being thereto subscribed," because, if the bill was drawn by an agent, there will be a variance. See 5 Esp. R. 180.

But, the prevailing doctrine at present is, that, if the bill was drawn by an agent, this expression would be rejected as surplusage.

In declaring on a bill or note made by a firm in their partnership name, a mistake in the name of either of the partners, will be cause of nonsuit, and not merely of abatement. 4 D. & E. 611; 1 Bos. & P. 72.

Where a bill, directed to several persons, is accepted by one only, it may be declared on as directed to that one only, or it may be stated according to the fact. If there is any misdirection or misspelling, it will be proper to state that the bill was directed to A B, (the true name) by the name or addition mentioned in the bill. See 1 Day's Rep. 11.

It is unnecessary to allege expressly, that the drawer delivered the bill to the payee, because, in an action against the drawer or acceptor, a delivery is included in the allegation that he made it; however it is usual and proper; and where the suit is brought by the holder of a bill, payable to bearer, a delivery should be alleged. Where a bill of exchange is accepted, payable at a particular place, in an action against the acceptor, it is not necessary to allege, that it was presented there for payment. His acceptance prevents the necessity of such allegation. See 2 Camp. 656; 1 Camp. 423.

If a bill, after acceptance is negotiated by the payee or any other

holder, and afterwards returned to him, it is unnecessary to state in the declaration, that he had parted with the bill, and that it was returned to him; he may state merely his former title. 7 D. & E. 572,

Where one of several drawees, accepts for himself and the others, it may be alleged so, or that the drawees accepted.

Where two drawees accept a bill of exchange, they may be sued jointly or severally. See 7 D. & E. 596, 597. Lawes on Assumpsit, 337. In actions against acceptors, an acceptance must be stated, but this is not necessary in actions against other parties.

A special acceptance must always be stated according to the fact; since a general acceptance would not support it; and, if it was made by parol, it would not be safe to state it as made in writing.

Where a bill is made payable to a fictitious person, or order, if the acceptor did not know that fact, the bill is wholly void. 1 Camp. 130, 180. A bill of exchange, promissory note, &c., payable to a man's order, may be declared on, as payable to him, merely, or as payable to his order, or, as payable to him or his order. Bayley on Bills, 105; Lawes on Ass. 332; See 1 Wils. 190.

If a note is" for value received," and these words are omitted in the declaration, it is not a variance, nor is it material. But if those words are stated in the declaration, but the bill or note does not contain them, it will be a fatal variance. If the words in the note are," for amount received," but the declaration is " for value received," and the latter words, from the rest of the declaration, appear to be a precise description of the note, it may perhaps be a variance; but if it is apparent, that those words are intended only to convey the import or legal effect of the note, they may be sufficient. See 2 L. Ray. 1543; 2 Bos. & P. 78.

If after acceptance, the acceptor should detain the bill, the payee may sue him on it, and having given him notice to produce it, may give parol evidence of its contents, if it is not produced. 5 East's R. 476.

When there is a mistake in the bill of exchange, and the sum expressed in the body of it, differs from the figures in the margin, it is proper to have two counts, adapted accordingly. This should be done also in every case, where the legal operation of the bill is supposed to vary from its apparent import.

In declaring on a bill, accepted after the time of payment has elapsed, the declaration should state, that the defendant accepted and promised to pay the bill, omitting the words," according to the tenor." Lawes on Assumpsit, 338.

Payee v. drawer, on default of acceptance.

For that the said E, on &c., at &c., made his certain bill of exchange in writing, of that date, and then and there directed the said bill to one A B, and therein and thereby requested the said A B, three months after the date thereof, to pay to the plaintiff, or order, the sum of &c., for value received, and then and there delivered the said bill to the plaintiff; and the plaintiff avers, that afterwards, and before the payment of the said sum of money specified in the said bill, viz. on &c., at &c., the said bill of exchange was presented and shown to the said A B for his acceptance thereof, and the said A B, was then and there required to accept the