bearing date the 10th day of April last, drawn by the plaintiff for a valuable consideration on, and accepted by the defendant, pay able two months after the date thereof, and due at a day now past, is sufficient without stating that the bill remains unpaid. Warmsley v. Macey, 2 B. & B. 338. 5 B. Moore, 52. S. C. affidavit to hold to bail, in an action of trover for a bill of exchange, it must appear that the bill has not been paid. Clarke v. Cawthorne, 7 T. R. 321.

In an

Affidavit to hold to bail—who may be bail.] An indorser of a bill may be bail in an action against the drawer. Harris v. Manley, 2 B. & P. 526. Where the same persons are bail in two actions on the same bill, they are only bound to justify in double the amount of the sum sworn to in each action, and not in double the amount of the sum sworn to in both actions. Reid v. Ellis, 1 B. Moore, 29.

Affidavit to hold to bail-in actions against married women.] Where a married woman had accepted a bill of exchange, and was held to bail on it, the court refused to order the bail bond to be cancelled, though it was sworn that the drawer, when he drew the bill, knew the defendant to be a married woman; for, by accepting, she represented herself to be a feme sole. Prichard v. Cowlam, 2 Marsh. 40. So where a married woman drew a bill on which she was arrested, the court refused to discharge her out of custody, on the same ground as in the last case, and also because there was no affidavit as to the coverture from the defendant herself. Jones v. Lewis, 2 Marsh. 305. 7 Taunt. 55, S. C.

Declaration.] Where the plaintiff has a cause of action on a bill or note, it is always advisable to insert in the declaration counts on such bill or note, even where he may proceed for the original consideration, or where the bill or note would be evidence under the money counts; for if he declares upon the bill or note, and the defendant suffers judgment by default, it will not be necessary to execute a writ of inquiry, the damages being assessed on a reference to the officer of the court; see post; whereas, if there be no count on the bill or note, a writ of inquiry must issue.

A bill or note in a foreign language, may be stated as if it were in English, without noticing the foreign language. Attorney Gen. v. Valabreque, Wightw. 9. See R. v. Goldstein, 3 B. & B. 201. 7 B. Moore, 1. Russ. & Ry. C. C. R. 473. S. C.

Declaration-venue.] An action on a bill of exchange or promissory note is transitory, and may be laid in any county ; and the court will not in general allow the defendant to change the venue to the county in which the cause of action really

arose. Even where it appears by the declaration, that there are other causes of action, the venue cannot changed. Shepherd v. Green, 5 Taunt. 576. So where, in an action on a promissory note, and for goods sold, though it appeared by the defendant's affidavit, that the real cause of action was a sale of goods, the court of K. B. refused to allow the venue to be changed, observing, that if the affidavit had stated that the promissory note did not exist, and that the count on it was inserted merely for the purpose of preventing the defendant from changing the venue, the court might perhaps have granted the rule. Hart v. Taylor, 2 D. & R. 164. But in a case in the Exchequer, where it appeared by the particulars of the plaintiff's demand, that the sum claimed for goods sold and delivered was nearly treble the amount of the sum for which the bill had been drawn, and that the bill had in fact been given in part satisfaction of the original debt for the goods sold; the court said, that under these circumstances the case was not within the general rule, that the venue, in an action on a bill of exchange, cannot be changed, and refused to bring back the venue after it had been changed. Greenway v. Carrington, 7 Price, 564. and see Baskerville v. Cooper, 1 Price, 374. So under special circumstances, as where the defendant has a number of witnesses living in the county to which he wishes to change the venue; and it would be a serious inconvenience to bring them to the county in which the venue is laid, the court of C. P. have allowed the venue to be changed in an action on a promissory note. Evans v. Weaver, 1 B. & P. 20. See Tidd,

653. 8th ed.

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Declaration-statement of "custom of merchants," "by force of the statute."] In declaring upon a bill of exchange, it is neither necessary to set out the custom of merchants at large, Soper v. Dible, 1 Ld. Raym. 175; or, to refer to it, for the law will take notice of the custom. Ereskine v. Murray, 2 Ld. Raym. 1542. See also Carter v. Dowrish, Carth. 83. Williams v. Williams, Carth. 269. Bayley, 307. In actions upon notes, instead of referring to the custom of merchants, the count refers to the statute; but this is unnecessary. Bayley, 307.

Declaration -statement of the date.] In declaring on bills payable in a certain time after date, the day of the date should be stated; and, where such a bill is not in fact dated, the day on which the bill was made should be stated; and the time of payment will be computed from that day. Giles v. Bourne, 6 M. & S.73; ante, p. 24. If the day on which the bill was made cannot be ascertained, then the first day on which the plaintiff knew, and can prove that it existed, should be stated. Bayley, 304. Where the declaration alleged, that the defen

dant on, &c., made his certain bill of exchange in writing, bearing date the same day and year aforesaid, and the real date of the bill was different, Lord Ellenborough held the variance to be fatal and non-suited the plaintiff. 2 Campb. 308. (n.) But where the declaration stated, that the defendant made his certain bill of exchange in writing, on the 3d day of February, (without stating, that it was so dated), and then and there requested the drawee to pay on the 1st day of August, &c., and the bill, when produced, appeared to be dated the 6th February, Thompson, B. ruled, that this was no variance, and that the plaintiff was not bound to prove that the bill was drawn on the day stated, though it was laid without a videlicet. Coxon v. Lyon, 2 Campb. 307. (n.) A mistake in the statement of the date may now be amended at the trial, by stat. 9 G. 4. c. 15; see Chap. XII.

Declaration-place at which the bill or note was made.] It is usual to state the place at which a bill or note was made; and where it was made abroad, or out of the county in which the action is brought, it is usual to state the place at which it is dated, adding the common venue of the county in which the action is brought, under a videlicet, as " at Paris," or "at Liverpool," "to wit, at Westminster, in the county of MiddleThe statement of the actual place, is not, however, necessary. Thus, in an action on a note, dated at Paris, Lord Ellenborough said, that he saw no reason why it might not be stated, that the note was made in the parish of Saint Mary-lebow, in the ward of Cheap, though dated at Paris, in the same manner as if it had been dated at York. Houriet v. Morris, 3 Campb.305.

sex."

Declaration-payee-place, and time of payment.] Where a bill is made payable to a fictitious person, and indorsed generally as by him, the holder may, as against a party acquainted with the circumstances, treat it as a bill payable to bearer. Ante, p. 24. Where a bill is issued with a blank for the payee's name, a bona fide holder may insert his own name; and it may be so declared upon; Attwood v. Griffin, Ry. & Moo. 425; or, it may be treated, as it seems, as a bill payable to bearer; ante, p. 23; but it is prudent, in such cases, to insert counts, stating the way in which the bill was actually drawn. Where a bill or note is made payable to the order of A. B., A. B. may sue upon it, and aver, that it was made payable to himself; Frederick v. Cotton, 2 Show. 8; and if he state, that the bill was made payable to his order, he need not shew that he has made no order. Smith v. M'Clure, 5 East, 476. Where a note is made payable to a married woman, the holder should declare upon it, according to its legal effect, that is, as a note payable to the husband. Per Ld. Kenyon, Barlow v. Bishop, 3 Esp. 267. 1 East, 432, S. C.

The place at which a bill or note is made payable, should be stated, where that place forms part of the contract. Ante, p. 26. The insertion of such place, where, in fact, it does not form part of the contract, is a variance. Ante, p. 26. An acceptance, by which a bill is made payable at a particular place, but not at such place only, and not otherwise or elsewhere, may since the stat. 1 & 2 Geo. 4. c. 78, be stated as a general acceptance. Ante, p. 149.

The time at which the bill is made payable, must be stated, so that it may appear to be due. Where a bill is drawn at usance, the length of the usance must be averred, for the court will not take judicial notice of it; the omission is fatal on demurrer. Buckley v. Cambell, 1 Salk. 131; ante, p. 185.

Declaration- -sum payable.] The sum payable must be stated according to the legal effect, and where a bill is stated generally to be for the payment of so many pounds, pounds sterling will be intended. Thus, where the declaration stated that a bill was drawn at Dublin to wit, at Westminster, and that the drawers requested the drawee to pay to their order, the sum of 5421. 1s. 8d. and at the trial the bill appeared to be drawn for 5421. 1s. 8d. Irish currency, it was held to be a fatal variance. Kearney v. King, 2 B. & A. 301. 1 Chitty, 28. S. C. Sprowle v. Legge, 1 B. & C. 16. 2 D. & R. 15. S. C. 3 Stark. 156. S. C.

Declaration-value received.] Where a bill or note contains the words value received, it is no variance to omit them in the declaration. Ante, p. 27. But if stated, they must be stated according to their legal effect. Ante, p. 27. Where a note was given for value delivered in leather, it was held to be no variance to state it to have been for value received in leather. Jones v. Mars, 2 Campb. 305. But a bill described to have been " for value received," is not proved by producing a bill" for value in wheat," for it does not import that the wheat was delivered. Per Lord Tenterden, Hil. Vac. 1827. Chitty, 356. 7th ed.

Declaration-parties.] The parties must be correctly stated, and if the name of any parties to the bill or note, who are not parties to the action, is mistaken, it is a ground of nonsuit. Thus, where in an action against the acceptor of a bill, it was declared upon as drawn by John Crouch, but appeared to be drawn by John Couch, the variance was held fatal. Whitwell v. Bennett, 3 B. & P. 559. Le Sage v. Johnson, Forrest, 23. In an action against the makers of a note by the names of William Austin, Robert Strobell, and William Shutliffe, the two latter were outlawed, and the former pleaded non assumpsit. It appeared at the trial, that the names of the parties were William Austin, Daniel Strobell, and William Shirtliffe, and a

verdict being taken for the plaintiff, the court set it aside on the ground of a variance. Gordon v. Austin, 4 T. R. 611. folio edition. But in general, the rule of law is, that the misnomer of any of the parties to the suit must be pleaded in abatement. Thus, where the plaintiff declared in the name of Edward Boughton, as drawer of a bill, and it appeared that his naine was Edmund, Bayley, J. thought that it would be enough to shew that the bill was drawn by the plaintiff, and that the defendant knew by whom the action was brought, and refused to nonsuit the plaintiff. Boughton v. Frere, 3 Campb. 29. And the same point has been decided with regard to the surname of the plaintiff in an action for goods sold. Jowett v. Charnock, 6 M. & S. 45. So in an action on a promissory note where one of the makers was sued by the name of Thomas Key (his real name being John Key) and suffered judgment by default, the misnomer was held immaterial, it being proved that John Key had been in fact sued, and served with process. Dickinson v. Bowes, 16 East, 110. So where, in the body of a note, the amount was made payable to Elizabeth Willison, and the action was brought by Elizabeth Willis, the plaintiff was allowed to adduce evidence to shew that Willison was inserted by mistake for Willis, the declaration alleging a promise to pay Willis by the name of Willison. Willis v. Barrett, 2 Stark. 29. In an action by the indorsee against the acceptor of a bill payable to the order of Phillip Phillips, the declaration stated that it was payable to Phillip Phillip; it was objected that this was a variance; but Lord Ellenborough said that whether the name on the bill be the party's false or true name is immaterial, if it be his name of trade; that the only question was as to the identity of the person. Forman v. Jacob, 1 Stark. 47. sed

quære.

A note signed by the defendant alone, but on the face of it importing to have been made by the defendant, and another, may be declared upon as the several note of the defendant. Roberts v. Peake, 1 Burr. 322. So a joint and several note may be declared on as the several note of any of the makers. Per Abbott, C. J. Mountstephen v. Brooke, 1 B. & A. 226. Butler v. Malissey, 1 Str. 76. And so in declaring against all, such a note may, as it seems, be treated as a joint note only. Middleton v. Sandford, 4 Campb. 34. And where in an action against one of two makers of a joint and several note, the declaration stated that the defendant and another jointly or severally promised, after judgment by default, this was held good. Rees v. Abbott, Coup. 832. overruling Butler v. Malissey, 1 Str. 76. Ovington v. Neale, 2 Str. 819. If one of the makers of a joint note is sued, he can only take advantage of it by plea in abatePer Buller J. Rees v. Abbott, Cowp. 832. And so, if one of several joint drawers of a bill is sued alone. Evans v. Lewis, cited 1 B. & A. 226. So also where the declaration

ment.

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