indorsee of a note made by the defendant for the accommodation of the payee and indorser covenanted not to sue the payee and indorser, it was holden, that the defendant could not avail himself of this covenant, in an action brought against him by the indorsee, although the defendant, by the verdict against him in this action, would have a right to recover over against the payee and indorser. The holder sued the acceptor, and charged him in execution; the latter obtained his discharge under the Lords' Act; the holder then sued the drawer, and recovered the amount of the bill; whereupon the drawer sued the acceptor, and charged him in execution; this was holden regular, for although the discharge of the acceptor, under the Lord's Act, was a satisfaction of the debt as to the holder, yet it would not operate as such between the drawer and acceptor. VIII. Of the Action on a Bill of Exchange-EvidenceRecovery of Interest. A BILL of exchange being a simple contract, the form of action, which is adopted for the recovery of the sum of money mentioned in the bill in case of non-acceptance or non-payment, is a special assumpsit; and, consequently, the rule laid down in the third section of the chapter on assumpsit, ante, applies here, viz. that the declaration must state the contract (which in this case is the bill,) truly and correctly, that is, either in the terms in which it was made, or according to the legal effect and operation of those terms: for a variance in any material point between the contract alleged, and the contract proved, will be fatal. As where 178. e Mallet v. Thompson, 5 Esp. N. P. C. f Macdonald v. Bovington, 4 T. R. 825. cited in English v. Darley, 2 Bos. and Pul. 61. cipal, and yet argued that Mr. Burke was not relieved thereby, though the principal was; but it was answered that the grantee could make no demand upon the surety, because he must, by so doing, enforce a payment from the principal, contrary to the agreement." Per Lord Eldon, C. J. in English v. Darley, 2 Bos. and Pul. 62. See also Bank of Ireland v. Beresford and another, 6 Dow. 234. the declaration stated the bill to be drawn by John Crouch, and upon the production of the bill in evidence, it appeared to have been drawn by John Couch, it was holden that the variance was fatal. So where it was alleged in the declaration, that the bill was for value received by J. S., and upon the production of the bill in evidence, it purported to be drawn on the defendant by J. S. payable to his own order, value received, this was holden a variance; for the meaning was, that value was received, by the defendant the drawee. So where the declaration stated that the bill was drawn and accepted at Dublin, to wit, at Westminster, for a certain sum, without alleging it to be at Dublin, in Ireland; it was holden that the bill must be taken to have been drawn in England, for English money; and, therefore, proof of a bill drawn at Dublin, in Ireland, for the same sum in Irish money, which differs in value from English money, did not support the declaration. But where the declaration stated the bill to be drawn upon and accepted by the three defendants, and it appeared in evidence that the three defendants were in partnership with J. S. and that the bill was drawn upon and accepted by the three defendants, and J. S. who was dead; it was holden', not to be a variance. It will be sufficient, however, to state the instrument according to its legal effect and operation. As where a bill of exchange was payable to a fictitious payee or order, and indorsed in the name of such fictitious payee by agreement between the drawer and acceptor, it was holden that an innocent indorsee, for a valuable consideration, might declare on such bill as payable to bearer, either against the drawerk, or against the acceptor' of the bill. As to variances, see 9 G. 4. c. 15. post, under tit. Covenant non est factum. Where the indorsement by the payee is in blank, and there is a mesne indorsement between that indorsement and the indorsement to the holder, the holder may strike out the mesne indorsement, and the indorsement to himself, and state himself in the declaration as indorsee of the payee, and this rule holds although the mesne indorsement be a special indorsement, Smith v. Clarke, Peake's N. P. C. 225. and 1 Esp. N. P. C. 180. So if a bill be drawn payable to A. who indorses it to B., by whom it is indorsed to C. who afterwards indorses it to the holder; the holder may state in his declaration that the bill was indorsed by A. to C. who in f Whitwell v. Bennett, 3 Bos. and Pul. 559. g Highmore v. Primrose, 5 M. & S. 65. k Collis v. Emett, 1 H. Bl. 313. 1 Gibson v. Minet, 1 H. Bl. 569. D. P. 3 Feb. 1791. diss. Thurlow, Ch. Eyre, C. J. Heath, J. dorsed it to the holder, leaving out the intermediate indorsement, to B. Chaters v. Bell, 4 Esp. N. P. C. 210. If it is alleged in the declaration, that the defendant on such a day drew a bill of exchange, a variance between the day laid in the declaration (although not under a viz.) and the date of the bill will be immaterial; but if it be alleged that defendant, on such a day, made his bill of exchange, bearing date the same day and year aforesaid, then a variance between the days will be fatal. In an action upon a bill of exchange, it is not necessary to set forth the custom; for lex mercatoria est lex terræ, and although plaintiff sets it forth, and does not bring his case within it, yet if by the law of merchants he has right, the setting forth the custom shall be rejected as surplusage. A bill of exchange" payable to A. or order, value received," may be alleged to be a bill for value received by the drawer P. In an action by the payee of a bill of exchange against the acceptor, on a bill payable to the plaintiff or order, the declaration omitted to allege a delivery to the payee; it was holden, on special demurrer, that the omission was immaterial, and that the allegation that the drawer made the bill was sufficient, for that included the delivery of the bill to the payee. In a late case, where an action was brought against the acceptor of a bill payable to the plaintiff's own order, and the declaration alleged a delivery of the bill to the defendant, which he afterwards accepted. On special demurrer, because it was not alleged that the defendant ever redelivered the bill to the plaintiff, the court were of opinion that there was not any ground for the objection; for the acceptance of the bill vested a right in the drawer to sue upon it; and if, after acceptance, the acceptor improperly detained the bill in his hands, the drawer might nevertheless sue him on it, and give him notice to produce the bill, or on his default give parol evidence of it. In an action brought on a bill payable to the plaintiff's own order, it is not necessary for the plaintiff to allege in the declaration, that he has not made any order for the payment of the bill, nor that he has made any order for the payment of it to himself; for a bill payable to a person's own order is payable to himself, if he does not order it to be paid to any other; and such order not appearing, it will be presumed that none was made. In an action by the indorsee against the drawer for non-payment of a bill, it is not necessary to state m Coxon v. Lyon, York Lent. Ass. 1810. o Mogadara v. Holt, 1 Show. 317. in the declaration, that the bill was accepted; if stated, however, it must be proved, but such proof will be supplied by evidence of a promise to pay the plaintiff after the bill became due; because such promise is an admission of the accep tance'. If a bill of exchange is accepted, payable at a particular place, in an action against the acceptor, this addition to the acceptance requires to be noticed in the declaration', and proof of presentment for payment at the place mentioned is necessary". But in an action against the acceptor, proof that the bill has been so presented some days after the bill became due was holden sufficient, no inconvenience having resulted to him from the delay. But, by stat. 1 & 2 Geo. 4. c. 78. s. 1. after the 1st August, 1821, if any person shall accept a bill payable at the house of a banker, or other place, without further expression in his acceptance, such acceptance shall be deemed, to all intents and purposes, a general acceptance of such bill; but if the acceptor shall, in his acceptance, express that he accepts the bill payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed to be to all intents and purposes a qualified acceptance, and the acceptor shall not be liable to pay the said bill, except in default of payment, when such payment shall have been duly demanded at such banker's house or other place. Since this statute it has been adjudged, that the holder of a bill accepted, payable at a banker's, but omitting the words "there only," is not bound to present it at the bankers, and consequently is not guilty of laches, if he omits to do so; and may still recover against the acceptor, in the event of the banker's failure, although a considerable time, e. g. three weeks have elapsed since the bill became due, during all which time the acceptor had funds in the banker's hands, exceeding the amount of the bill. Turner v. Hayden, 4 B. and C. 1. In such case no averment or proof of presentment for payment at the place mentioned is necessary. Selby v. Eden, & Bingh. 611. Fayle v. Bird, 6 B. and Č. 531. See also Hawkey v. Borwick, 4 Bingh. 135. A conditional acceptance cannot be declared on as an absolute acceptance, after condition performed. In action on 8 Jones v. Morgan, 2 Campb. 474. But see Tanner v. Bean, 4 B. & C. 312. where in action by indorsee against indorser for non-payment, the declaration contained an averment, that the bill was accepted by drawee, it was holden that this was unnecessary, and plaintiff need not prove it. t Gammon v. Schmoll, 5 Taunt. 344. u Rowe v. Young, 2 Brod. and Bingh. 165. x Rhodes v. Gent, 5 B. & A. 244. a bill against an acceptor for the honour of the drawer, it must be alleged, that when the bill arrived at maturity, it was presented to the drawee for payment. And this rule holds, whether the bill be a bill payable after date or after sight. The form of a declaration on a bill of exchange varies according to the parties against whom the action is brought. As the contract of the indorser to pay the bill is not absolute", but conditional, that is, in the event of a demand made on the acceptor at the time of payment and his refusal, it is incumbent on the holder to state in his declaration against the indorser, and to prove at the trial such demand and refusal, and that the indorser has had due notice thereof. An action was brought by the payee against the drawer of an inland bill of exchange, drawn in Jamaica at a time when days of grace were not allowed in that island; and the declaration stated, that the bill was drawn on the 16th of December, 1800, payable four months after date, and that, after it had been accepted by the drawee, the time limited for the payment of the bill being expired, to wit, on the 20th day of April, 1801, at, &c. it was shewn to the acceptor for payment, who then and there refused to pay the same, of which default the defendant (the drawer) afterwards, to wit, on the same day and year last aforesaid, to wit, at, &c. had notice; on demurrer, the declaration was holden bad. In the preceding case it must be observed that the payment was demanded, or at least stated in the declaration to have been demanded, after the proper time. In Rushton v. Aspinall, Doug. 679. on a bill payable three months after date, the payment was stated in the declaration to have been demanded before the proper time, viz. on the day when the bill was drawn, and it was considered as a nullity. If the bill be indorsed by procuration from the payee, care should be taken how such indorsement is stated in the declaration; for in a case where it was stated in the declaration, that A. drew a bill payable to B., and that B. indorsed it, his own hand-writing being thereunto subscribed: but, when the bill was produced, it appeared to have been indorsed by I. S., by procuration from B.: the variance was holden to be fatal. But where the declaration stated that the payee indorsed the bill, "his own proper hand-writing being thereunto subscribed," and it appeared с z Hoare v. Cazenove, 16 East. 391. VOL. I. June, 1805, per Grant, Master of the d Levy v. Wilson, 5 Esp. N. P. C. 180. e Helmsley v. Loader, 2 Campb. 450. B B |