and occupation, through the default of the plaintiff, as where the premises become unsafe and useless for want of repairs, the tenant not being bound to repair; in which case he is not liable in this action, though he has given no notice to quit. Edwards v. Etherington, R. and M. 268.

Defendant treated by plaintiff as a trespasser.] If the landlord has treated the tenant as a trespasser, he cannot afterwards recover against him in this action. Thus if he has recovered against him in ejectment, he cannot sue in this action for the rent accruing after the day of the demise. Birch v. Wright, 1 T. R. 378. See Bridges v. Smith, 5 Bingh. 410. But the mere bringing of an ejectment, and laying the demise before the time of the rent accruing, is no bar to an action for use and occupation. Cobb v. Carpenter, 2 Campb. 13 (n).

Statute of limitations.] The statute of limitations is a good defence, in an action against a person who has been tenant from year to year, but who has not within the last six years occupied the premises, paid rent, or done any act from which a tenancy can be inferred, though no notice to quit has been given. Leigh v. Thornton, 1 B. and A. 625.

Illegality.] It is a good defence that the premises have been occupied for an immoral purpose, with the plaintiff's knowledge. Crisp v. Churchill, cited 1 B. and P. 340; and see Gerardy v. Richardson, 1 Esp. 13. Jennings v. Throgmorton, R. and M. 251; and see post," Assumpsit," " Defence," "Immorality."

ASSUMPSIT ON BILLS OF EXCHANGE.

Production and proof of the bill.] In all actions upon bills of exchange and promissory notes, it is necessary for the plaintiff to produce the bill or note, and to show that it is the same as that on which he has declared. But where it appears that the instrument has been destroyed, as where the defendant tore his own note of hand, a copy is admissible. Anon. 1 Ld. Raym. 731. The plaintiff cannot recover on a lost bill, indorsed by the payee, without proving that it has been destroyed, though he has offered an indemnity to the defendant; Pearson v. Hutcheson, 3 Campb. 211, 6 Esp. 126, S. C. Hansard v. Robinson, 7 B. and C. 90; R. and M. 404 (n), S. C.; and though the bill was lost after it became due; Poole v. Smith, Holt, 144. Hansard v. Robinson, ubi sup. ; and an express promise to pay the lost bill will not entitle him to recover. Davis v. Dodd, 4 Taunt. 602. But where a bill is lost with only a special indorsement upon it by the payee, the indorser may re

15 Eng. Com. Law Reps. 481. 14 b

¡3 Id. 55.

cover upon it, for the holder can make no title to it. Long v. Baillie, 2 Campb. 214 (n); and see Smith v. Clarke, Peake, 225. If the acceptor improperly detains the bill in his hands, the drawer or other party may sue him upon it, and give him notice to produce it. Smith v. MClure, 5 East, 477; and where the defendant had admitted that he owed the money due upon a bill, which was in his own possession, Abbott, C. J., held that such admission might be given in evidence, under the common counts, without a notice to produce the bill. Fryer v. Brown, R. and M. 145.

The bill or note produced must appear to be the same upon which the plaintiff has declared, and if any material variance exist, it is a ground of nonsuit. Where a bill appears to be altered, it lies upon the party producing it to show that the alteration was not improperly made. Henman v. Dickinson, 5 Bingh. 183; see ante, p. 126.

Variance in names.] A variance in the names of the parties to the action will not be a ground of nonsuit, because it should be pleaded in abatement, provided the identity be proved, as where the plaintiff was called Edward instead of Edmund; Boughton v. Frere, 3 Campb. 29; so of a misnomer in the surname of plaintiff; Jowett v. Charnock, 6 M. and S. 45; and where the plaintiff is misnamed in a note, he may show by evidence that he was the person intended. Willis v. Barrett, 2 Štark. 29. Where a bill is drawn with the payee's name in blank, and in the declaration it is stated that A. B. (a bona fide holder who has inserted his own name) was payee, it is no variance. Atwood v. Griffin, Ry. and Moo. 425. A variance in the christian name of the defendant is not material, if it appear that he has been served with process. Dickenson v. Bowes, 16 East, 110. But where, in an action against three makers of a note, the declaration stated it to have been made by William Austin, Robert Strobell, and William Shutliffe, of whom the two latter were outlawed, and it appeared that the names were William Austin, Samuel Strobell, and William Shirtliffe, the variance was held fatal. No proof was given of the identity of the parties. Gordon v. Austin, 4 T. R. 611. Where the misnomer is in the name of a person not a party to the action, and cannot therefore be pleaded in abatement, it is fatal; as John Crouch, for John Couch. Whitwell v. Burnett, 3 B. and P. 559. But where a bill was stated to have been indorsed by Philip Phillip, and it appeared that his name was Philip Phillips, and that he had so indorsed the bill, Lord Ellenborough refused to nonsuit, observing that whether the name on the bill be the party's false or true name is immaterial, if it be his name of trade, and that the only question was as to the identity of the person. Forman v. Jacob, 1 Stark. 47.Proof that other persons joined the defendant in drawing, or

accepting the bill, is immaterial under the general issue, it being matter of plea in abatement. Mountstephen v. Brooke, 1 B. and A. 224; see ante, p. 43.

As to variance in the date of a bill or note, vide ante, p. 50.

Variance in place of payment.] If a bill is drawn (in the body of it), payable at a particular place, it is a fatal variance to state it without that qualification. Bayley on Bills, 310. So where a bill is directed to " A. B. payable in London," at the foot, payment in London is part of the contract, and the omission of the qualification would be fatal. Hodge v. Fillis, 3 Campb. 463. And where a note contains, in the body of it, a promise to pay at a particular place, it is a variance to omit the place; Roche v. Campbell, 3 Campb. 247, Sanderson v. Bowes, 14 East, 500; but where the place of payment is only mentioned in the memorandum at the foot of a note, it is no variance to omit it; Price v. Mitchell, 4 Campb. 200. Williams v. Waring, 10 B. and C. 2; and if stated in the declaration to be made payable there, it is a variance. Exon v. Russel, 4 M. and S. 505; but see Hardy v. Woodroffe, 2 Stark. 319. Sproule v. Legg, 3 Stark. 157, semb. cont. Where the memorandum at the foot of the note was printed, Lord Ellenborough considered the place of payment there mentioned to be part of the contract. Tregothick v. Edwin, 1 Stark. 468. By stat. 1 and 2 Geo. IV. c. 78, if a person shall accept a bill payable at the house of a banker, or other place, without further expression, it shall be taken to be a general acceptance; but if he express that he accepts it at a banker's, or other place, and not otherwise or elsewhere, such acceptance shall be taken to be a special acceptance. See Selby v. Eden, 3 Bingh. 611,a Fayle v. Bird, 6 B. and C. 531; post, p. 152.

Variance in direction.] An allegation that the bill was directed to the defendant, is not supported by proof that the drawer drew the bill to his own order, payable at a specified place, though the defendant had accepted it. Gray v. Milner, 2 Stark. 336; see 3 B. Moore, 90, 8 Taunt. 739,† S. C., second action on same bill. In an action against the acceptor upon a bill directed to him, or, in his absence, to J. S., the conditional direction to J. S. need not be stated. Anon. 12, Mod. 447. Bayley on bills, 309.

Variance in consideration.] The words "value received," in a bill payable to the drawer's order, mean value received by the drawee; and if stated to be value received by the drawer, it is a variance. Highmore v. Primrose, 5 M. and S. 65. Priddy v. Henbrey, 1 B. and C. 675." But where the bill is drawn payable to the order of a third person, "for value received," it is no variance

3 Eng. Com. Law Reps. 363. • 14 Id. 174. P 2 Id. 470. 13 Id. 70. 13 Id. 246. 3 Id. 372. 4 Id. 265.8 Id. 179.

to state that it was for value received of the drawer. Grant v. Da Costa, 3 M. and S. 351. "Value received" in a note, imports value received from the payee. Clayton v. Gosling, 5 B. and C. 360. Value received in leather, for value delivered in leather, is no variance. Jones v. Mars, 2 Campb. 306.

Variance in statement of currency.] Where the declaration on a bill drawn in Ireland stated that it was drawn for a certain sum, without stating it to be Irish currency, which it was in fact, the variance was held fatal. Kearney v. King, 2 B. and A. 301. Sprowle v. Legge, 1 B. and C. 16.w

Variance in proof of the drawing, or accepting, or indorsing.] Where the declaration stated that A. indorsed a note, his own handwriting being thereunto subscribed, and it appeared to have been indorsed by procuration, it was held a variance; Levy v. Wilson, 5 Esp. 180; but in a similar case, where it appeared that the name was written by the wife of the indorser, under his authority, Lord Ellenborough was inclined to think it enough to show the name written by an authorised agent; Helmsley v. Loader, 2 Campb. 450; and where the declaration stated that the defendants made their bill," their own proper hands being thereunto subscribed," and the bill appeared to be drawn in the defandant's firm of "Mars and Co." Lord Ellenborough refused to nonsuit for the variance. Jones v. Mars, 2 Campb. 305. So where the averment was, as in the above case, but it appeared that the name was written by the son of the party with his authority, Lord Tenterden held it to be no variance. Booth v. Grove, 1 M. and M. 182. A note made by A. only, cannot be declared on as the joint note of A. and B. though given to secure a debt for which A. and B. were jointly liable. Siffkin v. Walker, 2 Campb. 308.

Variance in presentment.] A variance in the day of presentment is not material, in an action against the acceptor on a bill payable a given time after sight; Forman v. Jacob, 1 Stark. 46; but where the time of payment depends upon the presentment, and the action is against the drawer of a bill, or indorser of a bill or note, the very day of the presentment ought to be stated. Bayley on bills, 317. However, where the averment is that the bill was presented when it became due and payable, to wit, on &c., it is not necessary to prove the exact day laid under the videlicet, and therefore if it be a Sunday, it is immaterial. Bynner v. Russel, 1 Bingh. 23,′ 7 B. Moore, 286, S. C. And if a presentment by a certain person is alleged, a presentment by another may be proved. Boehm v. Campbell, 1 Gow, 55.2

11 Eng. Com. Law Reps. 252.

W 8 Id. 11. 2 Id. 288. 8 Id. 230.

If the word "at" be inserted before the name of the drawee, it is no variance to state that the bill was drawn on the drawee. Shuttleworth v. Stephens, 1 Campb. 407; and see Russ. and Ry. C. C. R. 511, Allen v. Mawson, 4 Campb. 115. Where an instrument was in this form-" Three months after date I promise to pay, &c.

"J. B. Grutherot,

"35, Montague-place,

(Indorsed)

John Bury.
John Bury."

It was held that the holder might treat this as a promissory note, or (Per Ld. Tenterden, Bayley, and Holroyd, J. J.) as a bill of exchange at his election. Edis v. Bury, 6 B. and C. 433.a

Payee against Acceptor.

The plaintiff must produce the bill and prove the acceptance by the defendant, and if such acceptance is conditional, that the condition has been performed.

Acceptance in writing or parol.] By stat. 1 and 2 Geo. IV. c. 78, no acceptance of any inland bill of exchange shall be sufficient to charge any person, unless the acceptance be in writing on the bill, or if there be more than one part of the bill, on one of the parts. But in the case of foreign bills, a parol acceptance, or an acceptance by a collateral writing, is still sufficient. A letter, stating that such a bill" shall meet with due honour," is an acceptance, Clarke v. Cock, 4 East, 57, or that the holder " may rest satisfied as to payment." Wilkinson v. Lutwidge, 1 Str. 649; see also Wynne v. Raikes, 5 East, 514. "What! not accepted? We have had the money, and they ought to be paid; but I do not interfere in this business, you should see my partner," held to be an acceptance. Fairlee v. Herring, 3 Bingh. 625. "Your bill shall have attention," is not an acceptance, Rees v. Warwick, 2 B. and A. 113, and a promise to pay a non-existing bill, is no acceptance, Johnson v. Collins, 1 East, 98, unless perhaps some person be thereby induced to take or retain the bill. Ibid. Pillans v. Van Meirop, Burr. 1663. Pierson v. Dunlop, Cowp. 571. Bayl. on bills, 144.

Acceptance, absolute or conditional.] If the acceptance is conditional, a performance of the condition must be alleged and proved, Swan v. Cox, 1 Marsh. 176, or if the condition has not been performed, a legal excuse must be averred and proved.

Acceptance, general or special.] An acceptance at a banker's or other place is only a general acceptance, but an acceptance at a banker's or other place only, and not otherwise, or elsewhere, is a qualified acceptance, and a presentment of the bill there must be

13 Eng. Com. Law Reps. 227. 13 Id. 78.