specified, was by the said draft or order appointed to be made, after the making of the said draft or order, and before the payment of the said sum of money therein specified, to wit, on, &c. at, &c. duly transferred, assigned and delivered the said draft or order to the said A. B., who thereby then and there became and was, and from thence hitherto hath been, and still is, the lawful bearer thereof, and entitled to the said sum of money therein specified.
No. XVIII.-NOTICE TO PROVE CONSIDERATION. (b)
Between A. B., plaintiff, and
C. D. defendant.
I hereby give you notice, that on the trial of this cause the above-named defendant will insist and give in evidence, that the supposed bill of exchange (or promissory note) mentioned in the declaration in this cause, was obtained from the said defendant (or from G. H.), without legal or sufficient consideration and by undue means, and that the said defendant is not liable to pay the same; and I do hereby further give you notice and require you on the said trial to prove the consideration given by the said plaintiff, and every other party for the said bill of exchange, and when such consideration was given and paid, and in what manner, and the person or persons by and from whom the same bill of exchange was obtained by the said plaintiff or by any other person, and the time when the said plaintiff and any other person became the holder thereof; and I do hereby further give you notice, and require you on the said trial to produce and give in evidence all letters and copies of letters and books of account in any way relating to the said bill of exchange, particularly a certain letter dated, &c.
Yours, &c. L. M. Attorney for the said Defendant.
To Mr. A. B. the above-named
(b) See ante, p. 123. Chitty, 512. 7th ed.
ABATEMENT, plea of misnomer of party to suit, 265; of non-joinder, 265.
ABSCONDING of drawee of bill or maker of note equiva- lant to dishonor, 147. ACCEPTANCE. General points relating to, what is a ma- terial alteration in, 38; how made by one of several partners, 59; see Partners, by one partner in fraud of the others, 61, 62; is primá facie evidence of assess, 104; presentment for, 141; general acceptance, present- ment in case of, 147; special acceptance, presentment in case of, 148.
Presentment, to whom, 146; forged acceptances, 243, see Forgery; statement of acceptance in the declaration, 267; what the acceptance admits, 280, 282.
By whom, drawee or agent, 170, 171; cannot be by two, where bill is directed to one only, 171; agent accepting bill drawn upon him in his own name personally liable, 171; by one of several persons, not partners, binds him- self only, 171; where the bill is directed to no person but to a particular place, 171.
At what time, 171; whether a bill can be accepted before it is drawn, 171, 172, note 36; whether a person writing an acceptance on a blank bill is liable, 172; bill may be accepted after it is due, 172.
Form, verbal, 173; at common law, verbal acceptance good, 173; not good in cases of inland bills by stat. 1 & 2 Geo. 4. c. 78, 173; still good in cases of foreign bills,
What amounts to good acceptance not on the bill, 173; a col- lateral promise to accept a foreign bill is good, 174; though the bill has not been taken on the credit of such pro- mise, 174, 175; where such an acceptance is conditional
ACCEPTANCE-continued.
will not amount to a good collateral acceptance of a foreign bill, 177; promise to accept made on executory consideration, 177.
What amounts to a good acceptance on the bill, 177, note, 37; whether defacing the bill is an acceptance, 178, What acts, where there is no express acceptance or promise to accept, will amount to an acceptance, 178; whether re- taining a bill operates as an acceptance, 178, 179, 180, note, 38; request to A. to accept and draw on B., the drawing on B. is not an acceptance, 180; marking a check equivalent to acceptance, 180, 181.
Special acceptance at a particular place, 181; varying deci- sions of K. B. and C. P., 181, 182, 183, 184; settled by Rowe v. Young, that presentment must be averred and proved against drawer or acceptor, 184; statute 1 & 2 Geo. 4. c. 78., 185; when a bill is payable in London, &c. holder may demand a special acceptance, 186. Conditional acceptance, 186; good, 186; but the holder may refuse it, 187; if he takes it he should give notice to the other parties, 187; Note 39; must not be declared on as an absolute acceptance, though condition performed, 187; conditions should be expressed on the acceptance,
Acceptance varying from the terms of the bill, 187; drawee bound by, 188; but holder should give notice to other parties, 188; a refusal by holder to take such acceptance will prevent him from afterwards resorting to it, 188; holder may refuse it, 189.
Acceptance, supra protest, 189; note, 40; by drawee or third person, 189; by more than one person, 189; whether the holder can refuse such an acceptance, 189; inquiry should be made why the drawee has refused, 190; protest must be made before acceptance, 190.
Acceptance, supra protest, mode of, 190.
Acceptance, supra protest, liability of the acceptor, 190; in the nature of a conditional acceptor to pay if drawee does not, 191.
Remedy of the acceptor supra protest, 191; stands in the place of the party from whose honor he acccepted, 191 ; may sue the former acceptor, 192.
Cancellation of acceptance, 192; acceptance may be can- celled before delivery, 192; cancellation by mistake does not discharge the acceptor, 192; cancellation of the name of the maker of a check by mistake no dis- charge, 192. ACCEPTOR. See Accommodation Acceptor. General points re- lating to; is prima facie a debtor to the drawer, 1, 2; is
it must appear to have been performed, 175; what words primarily liable, 2; note 2; there cannot be two acceptors where a bill is directed to one person, 22; may prove that a bill was made abroad and is therefore void, 29; may render himself liable as such by adopting the act of third person, who has accepted bills in his name, 44; cannot set up infancy of drawer as a defence, 56; infant not liable as, 57; giving time to, discharge of other parties, 74; and see Indulgence, Drawer, and Indorser; varying the liability of, discharges other parties, 76; at what place presentment must be made to him, 147 to 149; see Presentment; liability of acceptor supra protest, 190; see Acceptance; notice of dishonor to, not necessary, 199; when justified in paying lost bill, 241; when guilty of neg- ligence in paying forged bills, 242, 243, 244; staying pro- ceedings in action against, 272; cannot set up forgery of drawer's name, 280; nor of his own where he has re- cognised his hand, 281, 282; what he admits by his acceptance, 280, 282; competency of, 304.
Liability of, 83; not for re-exchange, 83; to pay forged bill, 83; to pay bill immediately on its becoming due, 84; to pay interest, 310.
Liability of, how discharged, by release, 84; but not where bill comes into hands of indorsee for value without notice, 84; by waiver or renunciation, 84 to 87; not by holder, insol- vent, omitting to include bill in schedule, 86; liability suspended by taking substituted bill, 87; person taking up accommodation bill to prevent proceedings against the drawer, may sue the acceptor, 88; whether accommodation acceptor is discharged by time given to the drawer, 89; and note 16; whether neglect to present a bill will dis- charge acceptor, 90; liability discharged by foreign bank- ruptcy, &c. 91, 92; not by a cancellation of acceptance by mistake, 192.
Presentment to, at what place, 147 to 149; see Present-
ACCEPTOR Supra Protest, liability of, 190; remedy of, 191; proof in bankruptcy by, 326. ACCIDENT, inevitable, excuses the presentment of a bill,
169, 270; whether it excuses want of notice of dishonor, 233; whether it excuses want of protest, 237. ACCOMMODATION ACCEPTOR, giving time to, no dis- charge of drawer, 81; liable to holder, who took bill with notice of the accommodation, 83; when discharged by waiver, 84; whether discharged by indulgence to drawer, 89, and note 16; may have either a special action of as- sumpsit, or an action for money paid, 253; evidence in
ACCOMMODATION ACCEPTOR-continued.
action by, against drawer, 293; proof by, in bankruptcy, 328, 329. ACCOMMODATION NOTE, maker of, not discharged by release to payee, 77, 90; indorser of, discharged by time given to maker, 74; does not pass to assignees of the party accommodated, 138; set-off in bankruptcy, 344. ACCOMMODATION BILL. See Consideration, and Accom- modation Acceptor. When it is considered to be issued, 36, 37; drawer of accommodation bill considered the principal debtor, 81; whether giving time to drawer of accommo- dation bill discharges the acceptor, 89; notice to drawer of, when not necessary, 221 to 228; see Notice of Disho- nor; whether indorsee for value taking it after due, can re- cover on it, 112; holder for value can recover only to the amount of the value he has given, 104, 110; does not pass to the assignees of the party accommodated, 128; proveable, though no notice has been given, 321; proof of accommodation bill in bankruptcy, 327; by the party accommodating against the estate of the party accomo- dated, 328; proof in cases of accommodation bills de- posited as security, 338.
ACCOUNT STATEĎ, when bill or note may be given in evi- dence under such a count, 13, 255; where note avoided by a material alteration, may be given in evidence under,33; infant cannot be sued on, 57.
ACKNOWLEDGMENT, to take a case out of the statute of limitations, must be in writing, 298.
ACT OF BANKRUPTCY; denial to holder of bill, 319. See Bankruptcy.
ACTION, form of, on bills and notes, 252; special assump- sit, 252; when debt will lie, 252; or indebitatus assump- sit, 252.
Common counts, 253; for money lent, when applicable, 253 for money paid, 253; for money had and received, 254; on an account stated, 255.
Counts on the consideration, 256; when proper, 256, 257; should be stated in particulars, 257.
By whom, 257.
Against whom, 257.
Affidavit to hold bail, 267.
Declaration, 262 to 272. See Declaration.
Inspection of the bill, 272.
Staying proceedings, 272.
Judgment by default, 273.
ADDRESS, see Direction.
ADMINISTRATOR. See Executor.
ADMISSION. See Promise to pay. Of handwriting by accep-
tor, precludes him from the defence of forgery, 83; by one
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