308. (n.) ante, p. 263. But if it be stated that the bill was made on such a day, the exact day need not be proved. Coxon v. Lyon, 2 Campb. 307. (n.) unte, p. 263. With regard to the name of the payee, it is no variance if a bill was 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. Attwood v. Griffin, Ry. & Moo. 425. Nor is it a variance to state, that a bill is payable to A. B. where it is drawn payable to the order of A. B. Frederick v. Cotton, 2 Show. 8. With regard to the place of payment, where a bill is specially accepted, payable at a particular place, it is a variance to state it to have been accepted generally. Ante, p. 148. And so, if a bill or note is payable, generally, and not at a particular place, it is a variance to state it to be payable at a particular place. Ante, p.147. A variance in the sum payable will be fatal, as where formerly Irish currency was described as English currency. Kearney v. King, 2 B. & A. 301. ante, p. 264. With regard to the drawee, a bill, not directed to any particular person, but with a memorandum of a place, instead of the drawee's name, and accepted by the person residing at that place, must not be described as directed to that person. Gray v. Milner, 2 Stark. 336. sed quære, ante, p. 22. A bill directed to A., or in his absence to B., and accepted by A., may be described as a bill directed to A. alone. Anon. 12 Mod. 447. ante, p. 22. Where the word " at," in very small letters, is inserted before the drawee's name, it is no variance to state, that the bill was directed to him. Allan v. Mawson, Campb. 115. Hunter's case, Russ. & Ry. C. C. R. 511, ante, p. 19. With regard to the names of the parties, it has been stated, that a misdescription of the names of the parties to the action is ground of plea in abatement, and not of nonsuit. Ante, p. 264. But, a misdescription of the name of a person, party to the bill, but not party to the action, is a variance. Ante, p. 264. The suing one of several acceptors or drawers, and stating the bill to have been accepted or drawn by him alone, is not a variance. Ante, p. 265. Where it is stated that a person drew, accepted, or indorsed a bill, &c. and it appears that it was drawn, accepted, or indorsed by his authorised agent, it is no variance. Ante, p. 266. With regard to the presentment, the exact day laid is not material to be proved, it being stated that the bill was presented when it became due and payable. Bynner v. Russell, 1 Bingh. 23. 7 B. Moore, 286. S. C. ante, p. 270. If a bill is stated to have been presented by a particular person, it is not material to prove it presented by that person. Boehm v. Campbell, 1 Gow, 55. Where an indorsement was made after the bill became due, it is no variance to state it to have been made

before it became due. Young v. Wright, 1 Campb. 140.

ante, p. 268. What will be a variance in the statement of the consideration, or "value received," has been already stated. Ante, p. 27.

Identity.] Where the handwriting of a particular person is to be proved, some evidence of the identity of that person must be given. Thus, in an action against the acceptor of a bill it is not sufficient merely to prove that a person calling himself by the same name accepted the bill, it must be proved that such person and the defendant are one and the same. Memot v. Bates, B. N. P. 171. And see Middleton v. Sandford, 4 Campb. 34. Parkins v. Hawkshair, 2 Stark. 239. In order to prove the identity of an indorser, it seems in general to be sufficient prima facie evidence that a person in possession of the bill, and of the name by which it is indorsed, indorsed it, for in the absence of all evidence that the bill has got out of the hands of the right owner, possession is evidence of ownership. See Bulkley v. Butler, 2 B. & C. 441. 444. Mead v. Young, 4 T. R. 28. In an action by the indorsee against the acceptor of a bill of which E. S. was the payee, the plaintiff proved that a person calling himself E. S. came to C. having in his possession the bill in question, and also a letter of introduction (proved to be genuine) which was expressed to be given to a person introduced to the writer as E. S., and also another bill of exchange drawn by the writer of that letter. The bearer of these documents, after remaining ten days at C. during which time he daily visited the plaintiff, indorsed to him the bill in question and received value for it, and also a letter of credit. It was held that this was evidence of the identity of this person with E. S., the payee of the bill, sufficient to justify a verdict for the plaintiff. Bulkley v. Butler, 2 B. & C. 434. Where the

plaintiff has given prima facie evidence of the identity of an indorser, the defendant may prove that the bill was in fact indorsed by another person of the same name. Mead v. Young, 4 T. R. 28. ante, p. 23. Where a note was payable to H. S. and it appeared that there were two H. S.'s, father and son, Bayley, J. thought that the note was evidence of a promise to H. S. the father, but it appearing that H. S. the son (the plaintiff) had given instructions to bring the action, and was in possession of the note, the learned judge thought this sufficient. Sweeting v. Fowler, 1 Stark. 106. ante, p. 23. Where a bill was drawn by William Ostler upon William Ostler, it was held that proof that the bill was directed to William Ostler at the place which was the residence of the drawer when in England, and of his wife and family, coupled with a letter from the drawer, expressing his apprehension that the bill would be dishonored, was evidence to shew the identity of the drawer and drawee. Roach v. Ostler, 1 M. & R. 120.

Admissibility of agreement to control the operation of the bill.] Parol evidence is not admissible to vary the effect of a bill of exchange or promissory note. Woodbridge v. Spooner,3 B. & A. 233. Rawson v. Walker, 1Stark.361. Hoare v. Graham, 3Campb. 57. Free v. Hawkins, 8 Taunt. 92; ante, p. 233; but see Pike v. Street, 1 M. & M. 226, ante, p. 138. But a memorandum in writing, upon the bill or note, contemporaneous with the making of the instrument, is admissible to vary the effect of the bill or note. Leeds v.Lancashire, 2Campb.205. Hartley v. Wilkinson, 4Campb. 127; ante, p. 13; and see Stone v. Metcalf, 1 Stark. 534.4 Campb. 217, S. C.; ante, p. 14. Though the memorandum be made on a separate paper, yet if contemporaneous, it is admissible between the original parties and their representatives. Bowerbank v. Monteiro, 4 Taunt. 844; and see Steel v. Bradfield, Id. 227. Gibbon v. Scott, 2 Stark. 286. In the above case of Leeds v. Lancashire, Lord Ellenborough seems to have thought, that in the hands of a bona fide holder, who received the instrument as a promissory note, it might possibly be so 'considered; but as the indorsee must necessarily have notice of the memorandum when written on the note, it would seem, that even in his hands it could not be enforced contrary to the terms of the memorandum; and accordingly in another case, where the memorandum operated to render the instrument void as a promissory note, his Lordship held, that it could not be put in suit by an indorsee. Hartley v. Wilkinson, 4 Campb. 127. But when, as in Bowerbank v. Monteiro, (supra), the memorandum is on a separate paper, it would seem not to operate as against an indorsee for value and without notice.

Where in an action, on a note made in Prussia, payable 7 days after sight, it appeared, that the words " accepted on myself, payable everywhere" were written on the margin, and it was insisted, that the omission of these words in the declaration was a variance, Lord Ellenborough said, that the words constituted no part of the original instrument, their effect being merely to supply an acknowledgment of the sight of the bill; and that, although the entry was in fact contemporaneous with the note itself, in point of law its effect was subsequent. Splitgerber v. Kohn, 1 Stark. 125.

Payee against acceptor.] In an action by the payee against the acceptor, the plaintiff must produce the bill, and prove the acceptance of it by the defendant. If the action is on a foreign bill, which has been accepted by parol, some person, who was present when the parol acceptance was given, must be called.

Where the bill has been accepted in writing, proof that the handwriting is that of the defendant or of his agent, must be given. The handwriting of the defendant must be proved in

the usual manner; see 1 Phill. Ev. 465. 2 Stark. Ev. 651. Rosc. Dig. Ev. 54; and if there is a subscribing witness, he must be called. Where the acceptance is by an agent, the authority of the agent must be proved, either by calling him, or if the authority was in writing, by producing and proving it. Johnson v. Mason, 1 Esp. 90. So the authority may be proved, by shewing, that the defendant has recognised the act of the agent in this instance or in similar instances; Neale v. Erving, 1 Esp. 61. Johnson v. Ward, 6 Esp. 48; ante, p. 44. and where proof is given of instances of recognition, it seems unnecessary to produce the power of attorney. Haughton v. Ewbank, 4 Campb. 88.

Where the action is against several acceptors of a bill or makers of a note, the handwriting of each must be proved, unless they are partners; and then upon proof of the partnership it will be sufficient to shew that one of them accepted the bill, or made the note in the name of the firm. Thwaites v. Richardson, Peake, 16. In an action against James and John Palmer and Edward Hodgson, as joint and several makers of a promissory note, Hodgson pleaded a sham plea of judment recovered, to which there was a replication of nul tiel record and demurrer; James and John Palmer pleaded nonassumpsit. The handwriting of John and James Palmer only was proved at the trial, and for the plaintiffs it was said, that it was unnecessary to prove the handwriting of Hodgson, since he had by his plea admitted the note to be his; but Lord Kenyon ruled, that the handwriting of all the parties must be proved; he said, that between the plaintiffs and Hodgson it was unnecessary to prove the handwriting of the latter, he having by his plea of judgment recovered not denied it; but that the other defendants had a right to have the declaration proved, which could only be by proving the handwriting of all the defendants subscribed to the note, as the plaintiffs had averred in the declaration they had done. Gray v. Palmers, 1 Esp. 135. But after a partnership has been proved, an admission by one of the partners that the acceptance was made by him in the name of the firm, will be evidence against all the partners. In an action on a promissory note, subscribed by the firm of “ Vingerhoed and Christian," the declaration stated the several christian names of each defendant. A witness swore, that he he knew the firm of "Vingerhoed and Christian," and that there were two persons of those surnames in the firm, but that he did not know their christian names; and that in a conversation with Vingerhoed, he admitted that the note was subscribed by him in the name of the firm. This was held sufficient to establish the action against both defendants. Hodenpyl v. Vingerhoed, cor. Abbott, 3 July, 1818. Chitty, 381, 7th ed. So where several were sued as acceptors, and some

were outlawed, an admission by the defendant, who had pleaded non assumpsit, of his partnership with the defendants who were outlawed, was held to be sufficient evidence against him, of a joint liability in all the defendants. Sangster v. Mazzaredo, 1 Stark. 161. In general, after prima facie evidence of partnership, the declaration of one partner is evidence against his co-partners; Nicholls v. Dowding, 1 Stark. 81; though the former be no party to the suit; Wood v. Brudick, 1 Taunt. 104; but see Rooth v. Jauney, 7 Price, 198; and it is evidence, though made after the dissolution of partnership, if made as to a transaction which took place before the dissolution; Ibid; but not to bind the co-partner as to a transaction, which occurred previously to the partnership; unless a joint responsibility be proved as a foundation for the evidence. Catt v. Howard, 3 Stark. 3. (Note 55.)

The acceptance admits not only the handwriting of the drawer, so as to preclude the necessity of proving it, but also the capacity of the drawer, and the acceptor is thereby concluded from shewing that the acceptance is a forgery. "When a bill is presented for acceptance," says Mr. Justice Buller, "the acceptor only looks to the handwriting of the drawer, which he is afterwards precluded from disputing; and it is on that account that an acceptor is liable, even although the bill be forged." Smith v. Chester, 1 T. R. 654. If the bill is drawn by an agent, the acceptance admits the agency. Thus in an action by the payee against the drawers of a bill, which purported to be drawn by one Wood, as the agent of George, James, and John Parker, upon John Parker, there was no proof that Wood had authority from the defendants to draw the bill, but a witness swore that he, as the agent of John Parker the drawer, one of the defendants, had accepted it on his account, Lord Ellenborough said, that the bill having been accepted by order of one of the defendants, this was sufficient evidence of its having been regularly drawn, and further that the acceptor being likewise a drawer, there would be no occasion for the plaintiff to prove that the defendants had received express notice of the dishonor of the bill, as this must necessarily have been known to one of them, and the knowledge of one was the knowledge of all. Porthouse v. Parker, 1 Campb. 82. So in Robinson v. Yurrow, 7 Taunt. 455. 1 B. Moore, 150 S. C. infra, which was an action against the acceptor of a bill drawn by procuration, it was held that the acceptance admitted that such a firm as that of the drawer's existed, and that the agent was authorised to draw by procuration. So where a bill purports to be drawn by an aggregate firm, the acceptor by his acceptance is estopped from averring that it was not drawn by a firm, though in fact it was drawn by a single person. Bass v. Clive, 4 M.& S. 13. 4 Campb. 78 S. C. Nor can an acceptor set up the infancy of the drawer as a defence. Taylor v. Croker, 4 Esp. 187. ante, p. 56.