Where a bill was accepted for the accommodation of the drawer, and the holder knowing that circumstance gave time to the drawer, Lord Ellenborough held the acceptor discharged; Laxton v. Peat, 2 Campb. 185; Collott v. Haigh, 3 Campb. 281; but this case has been frequently doubted. Raggett v. Axmore, 4 Taunt. 730, Fentum v. Pocock, 5 Taunt. 192, Kerrison v. Cooke, 3 Campb. 362; but see Adams v. Gregg, 2 Stark. 531,' see also Hill v. Read, D. and R., N. P. C. 26. But where time was given to the accommodation acceptor, Lord Ellenborough ruled that the drawer was not discharged. Collott v. Haigh, 3 Campb. 281. So where the acceptor is the agent of the drawer, the latter will not be discharged by time given to the former. Clarke v. Noel, 3 Campb. 411.

Competency of Witnesses.

Drawer.] In an action against the acceptor, the drawer is in general a competent witness, either for the plaintiff or for the defendant; for, if the plaintiff recovers, the drawer pays the bill by the hands of the acceptor; if the plaintiff fails, the drawer is liable to pay the bill himself. Bayl. on bills, 419. Thus, he may be called by the plaintiff to prove the defendant's handwriting; Dickinson v. Prentice, 4 Esp. 32; or by the defendant to prove that the plaintiff discounted the bill on an usurious consideration; Brard v. Ackerman, 4 Esp. 119; Rich v. Topping, Peake, 224, 1 Esp. 177, S. C. Bayley on bills, 420; or that the bill has been paid; Humphrey v. Moxon, Peake, 52; see also Williams v. Keats, Mann. Index, 328; and it is no objection that he is a prisoner on a charge of having forged the bill. Barber v. Gingell, 3 Esp. 62. But where the acceptor has accepted the bill for the accommodation of the drawer (the witness), the latter is not a competent witness for the defendant, for, if the plaintiff should fail, the witness would be discharged from his liability to indemnify the defendant against the costs of the action on the bill. Jones v. Brooke, 4 Taunt. 464. Hardwick v. Blanchard, Gow, 113. Where the witness has become bankrupt, and the costs are proveable under the commission, and he has obtained his certificate, he is then admissible. Brind v. Bacon, 5 Taunt. 183. Moody v. King, 2 B. and C. 558. Where a bill has been drawn by one partner, in fraud of the rest, to pay a separate creditor, a copartner is a competent witness for the acceptor in an action against him by the creditor to prove the want of authority. Ridley v. Taylor, 13 East, 176.

Where the defence was a gaming consideration, the drawer was called by the defendant. It was objected, that he was interested to defend the plaintiff, being liable for treble penalties if he recovered, but not if he failed. It was held, that the witness was competent, since if the plaintiff failed, the witness was liable to him if he succeeded, the witness might deliver himself from the penalties

• 1 Eng. Com. Law Reps. 72. 13 Id. 461. 16 Id. 418. h 5 Id. 480.

by refunding within the time. 1818, Manning's Index, 327.

Habner v. Richardson, Holroyd, J.

Indorser.] In an action by indorsee against drawer or accepttor, the indorser is in general a competent witness, either for plaintiff or defendant; for the plaintiff, because though the plaintiff's succeeding in the action may prevent him from calling for payment from the indorser, it is not certain that it will, and whatever part of the bill or note the indorser is compelled to pay, he may recover again from the drawer or acceptor;-for the defendant, because if plaintiff fails against drawer or acceptor, he is driven either to sue the indorser, or to abandon his claim. Bayl. on bills, 422. For the plaintiff he may be called to prove his own indorsement, Richardson v. Allen, 2 Stark. 334.1 or upon a bill drawn for his own accommodation, that the plaintiff, the indorsee, gave him value for it, Shuttleworth v. Stephens, 1 Campb. 408, or that the defendant promised to pay the bill after it became due. Stevens v. Lynch, 2 Campb. 332. For the defendant the indorser may be called to prove that he had paid the bill, Charrington v. Milner, Peake, 6, Birt v. Kershaw, 2 East, 458, or that an unstamped bill, dated abroad, was in fact made here. Jordaine v. Lashbrooke, 7 T. R. 601.

In an action by indorsee against acceptor, the indorser, though released by the defendant, was held incompetent to prove that he delivered the bill to the plaintiff merely for the purpose of procuring payment as agent for the witness. Buckland v. Tankard, 5 T. R. 578. But this decision has been doubted. Birt v. Kershaw, 2 East, 451. 1 Phill. Ev. 63, 6th ed.

So

Drawee or acceptor.] The acceptor is a competent witness for the plaintiff, to prove that he had no effects of the drawer, the defendant, in his hands, Staples v. Okines, 1 Esp. 332; for though the plaintiff recovers, the witness remains liable to the defendant. the drawee may be called to prove the same fact. Legge v. Thorpe, 2 Campb. 310. In an action against a drawer, it has been held that the acceptor is not a competent witness for the defendant, to prove a set-off, on the ground that he is answerable to the drawer only to the amount which the plaintiff recovers against the defendant, Mainwaring v. Mytton, 1 Stark. 83," sed quære; for it seems that the drawer would be entitled to call upon the acceptor for the full amount of the bill. Bayl. on bills, 424. It seems that a statement by the drawee, as to the drawer, the defendant, not having effects in his hands, is evidence against the drawer, if made at the time of presentment, but not if made subsequently. Prideaux v. Collier, 2 Stark. 57," on the ground that the drawee is for that purpose the agent of the drawer.

13 Eng. Com. Law Reps. 371. m 2 Id. 306. ■ 3 Id. 242.

In an action against the acceptor of a bill, the acceptor was called for the defendant to prove, that after being accepted by him and indorsed by the defendant, the bill was put into his (the acceptor's) hands for the purpose of getting it discounted, that he took it for that purpose to the plaintiff, who having got hold of it refused either to discount or return it. It was objected that the witness was incompetent on the ground of interest, and Lord Tenterden rejected him. The Court of King's Bench refused a rule for a new trial moved for on the ground that the witness was improperly rejected. Per Lord Tenterden, "I am of opinion that the testimony was properly rejected. It appeared by the statement of the defendant's counsel, that the witness was answerable for the payment of the bill by himself, and there was an implied undertaking by him to indemnify Lowe (the drawer and defendant.) He was, therefore, interested in the result of the action, inasmuch as the costs, if the plaintiff succeeded, would ultimately fall on himself." Edmonds v. Lowe, 8 B. and C. 407.°

66

ASSUMPSIT ON PROMISSORY NOTES.

In general, the rules relating to the proof of the drawing, indorsing, presentment, and notice of dishonour of bills of exchange, apply also to promissory notes. Where a different rule prevails, the distinction will be noticed.

In an action on a promissory note, the note must be produced and proved, see ante, p. 147, and any material variance between the statement and proof will be fatal, see ante, p. 148, to p. 151.

Payee against Maker.

In an action on a promissory note by the payee against the maker, the plaintiff must prove the making of the note by the defendant, and in some cases, a presentment of the note at a certain place.

The making of the note.] The making of the note will be proved by proving the handwriting of the defendant, see ante, p. 68; or, if made by an agent, by proof of the handwriting and authority of such agent. If the note is for less than 57. it must be attested by a subscribing witness, 7 Geo. III. c. 30, s. 1, and such attesting witness must be called; or if dead, or he cannot be found, ante, p. 65, his handwriting must be proved, and some evidence must be given of the identity of the maker of the note. An admission by the defendant that the handwriting is his, will be sufficient proof in the case of an unattested note, though it was made pending a treaty for a compromise. Waldridge v. Kennison, 1 Esp. 143. An offer on

the part of the defendant, after the note has become due, to give another note to the plaintiff instead of it, is an admission of the plaintiff's title. Bosanquet v. Anderson, 6 Esp. 43. An admission of his signature, by one of the parties, will only be evidence against himself. Gray v. Hodson, 1 Esp. 135.

Presentment.] Where the promise to pay is general, no presentment to the maker need be stated or proved. But, where the note contains in a body of it, and not merely in a memorandum at the foot, a promise to pay at a particular place, a presentment at such place must be proved, see ante, p. 159, but notice to the maker, of the dishonour, is unnecessary. Pearce v. Pemberthy, 3 Campb. 261. Circumstances which would excuse the presentment, as that the maker could not be found, cannot be given in evidence under the general allegation of presentment; Leeson v. Pigott, Bayl. on bills, 324; and see Smith v. Bellamy, 2 Stark. 223; but if a note be made payable at a particular town, and the maker has no residence there, a presentment at the banking-houses there will justify and support an allegation that it was presented there to the maker. Hardy v. Woodroffe, 2 Stark. 319.1 Bayley on bills, 324. A note payable at two places may be presented at either. Beeching v. Gower, Holt, 313. In an action on a note payable on demand, a demand need not be alleged or proved, for the action itself is a demand. Rumball v. Ball, 10 Mod. 38.

Evidence under the common counts.] A promisssory note is evidence of money lent by the payee to the maker. Bayl. on bills, 286. Where a note cannot be given in evidence for want of a proper stamp, the plaintiff may recover on the consideration of the note, if the declaration contains counts on such consideration, and if he is not precluded from availing himself of them by the terms of his particular. Wilson v. Kennedy, 1 Esp. 245. Farr v. Price, 1 East, 58. Wade v. Beasley, 4 Esp. 7. The plaintiff will not be allowed to resort to the money counts if the note has been lost, unless he can prove it destroyed, or show that the defendant cannot be again subjected to the payment of it. Dangerfield v. Welby, 4 Esp. 159, ante p. 147.

Indorsee against Maker.

In an action on a promissory note by an indorsee against the maker, the plaintiff must prove the making of the note by the defendant, see ante, p. 157, and the indorsement stated in the declaration.

It has been already stated in what manner an indorsement is to be proved, ante, p. 154, what indorsements are good, ante, p. 155, and what needs be proved, ante, p. 156, as well as in what cases the plaintiffs must prove that they are in partnership, ante, p. 156. In declaring upon a note made to payee or bearer, the indorsements

3 Eng. Com. Law Reps. 324. 3 Id. 363.3 Id. 117.

need not be mentioned, but if stated, they must, it seems, be proved. Waynam v. Bend, 1 Campb. 175; but see Tanner v. Bean, 4 B. and C. 312.*

Evidence under the common counts.] It is said that a promissory note is primâ facie evidence of money had and received by the maker to the use of the holder; Bayl. on bills, 287; but Lord Ellenborough was of opinion, that the indorsee could not recover against the maker on the money counts, as he was not an original party to the note, and there was no evidence of any value received by the defendant from him. Waynam v. Bend, I Campb. 175; see ante, p. 156.

Indorsee against Indorser.

In an action by an indorsee against the indorser of a promissory note, the plaintiff must prove the defendant's indorsement, the presentment to the maker and his default, and notice to the defendant of the dishonour.

Indorsement.] In what manner an indorsement must be proved has been already stated, ante, p. 154. It admits all prior indorsements, ante, p. 154, and also the handwriting of the maker. Free v. Hawkins, Holt, N. P. C. 550. When an indorsement is attested (on a note for payment of less than 57.), it must be proved by the subscribing witness. As to what indorsements it is necessary to prove, see ante, p. 156.

Presentment.] In what manner a promissory note or bill of exchange must be presented, has already been stated, ante, p. 157. Where a note is made payable in the body of it at a particular place, it must be presented there, ante, p. 149. As to proof of the maker's default, see ante, p. 161.

Notice of dishonour.] It has been before stated by and to whom, ante, p. 160, and within what time, ante, p. 161. notice must be given, as also what will be considered sufficient proof of the delivery of the notice, ante, p. 161, and of its contents, ante, p. 162. It has also been shown in what cases proof of notice may be dispensed with by an acknowledgment on the part of the defendant of his liability, ante, p. 164. Where the payee of a note indorses it for the accommodation of the maker, it is still necessary to give notice to the payee in order to charge him, and it is no defence that it was agreed between the parties that the note should not be put in force. Free v. Hawkins, 8 Taunt. 92."

Evidence under the common counts.] An indorsemeut is evidence of money lent by the indorsee to the indorser. Kessebower v. Tims. Bayl. on bills, 288.