NOTE. If the acceptance varies from the bill, in time or place of pay. ment, or is on a contingency, it should be stated in the declaration agreeably to the fact, and there must be an averment of a presentment or of the happening of the contingency accordingly.

In an action, by a drawer against an acceptor, on a bill made payable to a third person, the declaration should allege a presentment for payment, and also that the bill was returned to the drawer for non-payment and notice of that fact, to the defendant. Lawes on Assumpsit, 368.

Second Indorsee v. Acceptor.

For that whereas one A B, on &c., at &c., made his certain bill of exchange of that date, directed to the said E, and thereby requested the said E, two months after the date thereof, to pay one C F or order, the sum of &c., for value received, and then and there delivered the said bill to the said C F, which said bill the said E, thereafterwards, viz. on the same day, on sight thereof accepted according to the usage of merchants; and the said C F thereafterwards on the same day, (state the date of the indorsement, if there be any) indorsed the said bill, then and still unpaid, and then and there delivered the same to one R S, and the said R S thereafterwards, viz. on the same day, indorsed the said bill, then and still unpaid, and delivered the same to the plaintiff; by means whereof the said E became liable, and in consideration thereof, then and there promised the plaintiff, to pay him the sum of money specified in the said bill, according to the tenor and effect of the said bill, and of the said E's acceptance thereof, and of the said indorsements thereon; yet, though said two months have elapsed, and though often requested, &c.

NOTE. A count for a first or any other indorsee, may be easily made from the foregoing, by omitting one of the statements of indorsement, or adding others.

An executor or administrator may indorse the bills or notes of his intestate or testator. Str. 1260.

If a bill or note is payable to several persons who are not partners, they must all indorse. Doug. 653, n.

Where the indorsement is by a partnership, to avoid the risk of a variance, use these expressions; "And the said G H, I K, L M, thereafterwards, viz. on the same day, at &c., indorsed the said bill with the style of their partnership aforesaid, and delivered the same to the plaintiff, &c.

If the indorsement is by an agent, say, "and the said A B (the principal) thereafterwards, on the same day, by his agent in this behalf, indorsed and delivered the said bill to the plaintiff, &c.

Indorsee v. Drawer, the acceptor not having paid.

For that the said E, on &c., at &c., drew his certain bill

of exchange of that date, directed one E F, and thereby requested the said E F, three months after the date of the said bill, to pay to one G H, or his order, the sum of &c. for value received; and the said G H thereafterwards, viz. on the same day, indorsed and delivered the said bill, then and still unpaid, to the plaintiff; and the plaintiff avers that afterwards. viz. on &c., at &c., the said bill was presented to the said E F for payment thereof, and the said EF was then and there requested to pay the sum of money specified therein, according to the tenor and effect of the said bill and of the said indorsement thereon; but the said E F did not then pay the said sum, nor hath at any time since paid the same, but wholly refused so to do; of all which said several premises the said E, thereafterwards, viz. on the same day had notice; by means whereof the said E became liable, and in consideration thereof then and there promised the plaintiff, to pay him the sum of money specified in the said bill when thereunto afterwards requested; yet though requested, &c.

NOTE. In a case like the above, it is best not to state an acceptance by the drawee, for though unnecessary, if stated, it must be proved. Bayley, 188; 2 Camp. 474.

However, if the bill is payable after sight, or the acceptance is special, or varies from the tenor of the bill, in the mode or place, or time of payment, or in other respects, the acceptance should be stated.

In an action, brought by the indorsee of a negotiable instrument, the declaration should show that the instrument contained words authorizing a transfer. Otherwise it will be bad; because if there are no such words, the holder can maintain no action in his own name; and if there are such words, but they are not set out in the declaration, there will be a variance.

Where part of the amount of a bill or note, has been paid before indorsement for the balance, the indorsee, in his declaration, should show or acknowledge payment of that part. 1 Ld. Raym. 360.

In an action by a remote indorsee, he may, in his declaration, omit the intermediate indorsements, between himself and the indorsers, against whom the suit is brought, and, at the trial, strike out the names not noticed in the declaration; but then he will lose his remedy against those indorsers, whose names are so struck out. But it is absolutely necessary to state the first indorsement, as also the indorsement of the party sued ; and whatever indorsements are alleged in the declaration, must be proved. It will be best, in every case, therefore, to omit in the declaration all notice of indorsements, which cannot be proved. See 4 Esp. R. 210.

If a bill of exchange is indorsed before payable, but after part of it has in fact been paid, this will not affect an indorsee, who was ignorant of the paymeut. 1 Esp. N. P. C. 463.

Indorsee v. Indorser.

For that one A B, on &c., at &c., made his certain bill

of exchange of that date, directed to one E F and thereby requested the said E F three months after the date of the said bill, to pay to one G H, or order, the sum of $—, for value received, and then and there delivered the said bill to the said G H; and the said G. H. thereafterwards, viz., on the same day indorsed the said note, then and still unpaid, and delivered the same to the said E, who thereafterwards, viz. on the same day, indorsed and delivered the said bill to the plaintiff; and the plaintiff avers that afterwards, viz., on &c.,at &c., the said bill of exchange was presented to the said E F for payment thereof, and the said E F was then and there requested to pay the sum of money, specified therein, according to the tenor and effect of the said bill of exchange; but that the said E F did not then pay the said bill, nor hath since paid the same, but then refused and hath since wholly refused so to do; of all which several premises the said E afterwards, viz., on &c., at &c., had notice; by reason whereof the said E became liable, and in consideration thereof, then and there promised the plaintiff, to pay him the sum of money specified in said bill, when thereunto afterwards requested; yet, though often requested, &c.

NOTE. In an action against an indorser, acceptor, or drawer of a bill of exchange, or against an indorser or maker of a promissory note, notice of indorsement is not necessary to be alleged; but notice of non-payment of a note, or non-payment or non-acceptance of a bill of exchange, is indispensable. See 1 Bos. & P. 625.

But in Kinsley v. Robinson, it was held, generally, that the drawer of a bill of exchange having no effects of the acceptor in his hands, from the time when the bill is drawn, to the time when it becomes due, is liable without demand and notice of non-payment.

In the same case the acceptor was held to be a competent witness to prove the want of funds. 21 Pick. 327.

A note or bill, it should be recollected, must be presented for payment on the third day of grace, unless that should happen to be Sunday, or other dies non juridicus, in which case the presentment should be made on the second day of grace.

A presentment for payment, where necessary, must be alleged to have been made at the time when, and the place where, the bill or note became due; otherwise it will be bad. Doug. 679. Going with the bill or note to a man's place of business, in business hours, and finding it shut, without more, is using sufficient diligence. See Shed v. Brett, &c. 1 Pick. 414.

It has been recommended by some to say "and thereafterwards, when the said bill of exchange became due and payable, viz., on &c., at &c., the said bill of exchange was shown and presented to the said G. H. for payment; others recommend that it should be expressed thus; " and afterwards, viz, on &c., at &c., the said bill was presented and shown to the said G H for payment," &c. The latter seems the better, as being more concise, and because, if the bill was presented on the proper day,

it may be shown in evidence, in this way of declaring, though the day of presentment should be incorrectly set out under the viz., as well as under the former.

It should be remembered that the indorsee of an accommodation note, who receives it, knowing it to be such, can recover no more than the amount he has actually paid upon it. 1 Esp. R. 261.

Where a bill is payable in a foreign currency, the declaration should contain an averment of the value of the currency. 3 Dal. 365.

So if a bill is payable at usance, the length of the usance should be averred. The omission is bad on special demurrer. Lawes on Assumpsit, 375.

Where the plaintiff brings his action against the party, from whom he receives the instrument, he may, at discretion, introduce any of the common counts suited to the precise consideration, for which he received the note. But this is useless, where the suit is against a party, between whom and the plaintiff, there is not a similar privity.

With regard to what is sufficient notice of the dishonor of a bill or note to charge an indorser, it should be observed as a general rule, that an indorser, where he does not waive it himself, is entitled to seasonable notice in all cases. The only exception, and it is very doubtful how far it will do to rely on this, is where the indorser is the real debtor, and the drawer or maker, merely signs to assist his credit, or for his accommodation. 4 Cranch, 141; 11 Johns. R. 180. In this case, if notice should not be given of the dishonor of the bill or note, perhaps the indorser might still be liable. But the reason which perhaps would have most weight with the Court, would be, because, if the indorser were not held, still, if the maker or drawer was obliged to pay the bill or note for the indorser, the indorser would be liable to refund the amount, in an action. to be brought by such drawer or maker. To decide, therefore, that the indorser would not be liable to an action by the holder of a note, &c.,.. without notice of its dishonor, in such a case would merely lead to. circuity of action.

If the promisor refuses to pay on demand, on the day when the note falls due, or is not to be found at his place of business, and no one is there to answer for him, the bill or note is dishonored; and the holder, having sent notice to the post-office of the dishonor of the bill or note, may commence an action, before the expiration of that day, and before it is possible for the indorser to have received actual notice. See Shed v. Brett, 1 Pick. 401.

A personal demand by an agent, having the note with him, is sufficient, without any authority in writing. Ibid.

But in an action by an indorsee of a note against the indorser, where each had a place of business in the same town, and the writ was served on the indorser on the day the note became due, but before notice given, it was held, that the action was prematurely brought, although notice was given afterwards by a notary on the same day. New England Bank v. Lewis, 2 Pick. 125.

If a drawer or indorser receives due notice of its dishonor from any party to a bill, he is directly liable upon it to any subsequent indorser from whom he has received no notice. 2 Camp. 373.

Ignorance of the drawer's residence, if proper inquiry, is made, is a sufficient excuse for not sending notice; and the same reason applies to an indorser. See 1 Gow. 81.

Drawer v. Acceptor, on a foreign bill.

For that the plaintiff at Z, in parts beyond seas, viz., at &c., on &c., made his certain bill of exchange, of that date, directed to the said E, and thereby requested the said E, at two usances, that is to say, two calendar months after the date of that, his second of exchange (first and third of the same tenor and date not being paid,) to pay to the plaintiff, or order, the sum of ducats, value received; which said bill of exchange the said E afterwards, viz. on &c., at &c., upon sight thereof accepted, according to the usage of merchants; by means whereof the said E became liable, and in consideration thereof, then and there promised the plaintiff to pay him the sum of money specified in the said bill of exchange, according to the tenor and effect thereof, and of the said E's acceptance thereon; and the plaintiff avers, that the said ducats, at the time when the said bill of exchange was made, and also at the time when the same became due, were of great value, viz. of the value of $-, of the lawful money of this commonwealth, viz. at &c. aforesaid. Yet, though the said two usances have long since elapsed, and though often requested, &c.

Indorsee against drawer, drawee refusing acceptance, with statement of protest.

For that the said D, on &c., at &c., in parts beyond seas, viz. at &c., made his certain bill of exchange of that date, directed to one A B, and therein requested the said A B, two months after the date of that his, the said D's, second of exchange, (first and third of the same tenor and date, not paid,) to pay to one E F or order, the sum of $-, value received, and then and there delivered the said bill to the said E F and the said E F thereafterwards, to wit, on the same day, indorsed and delivered the said bill to the plaintiff; and the plaintiff avers, that afterwards, viz. on &c., at &c., the said bill of exchange, then and still unpaid, was presented to the said A B for his acceptance thereof, and the said A B was then and there requested to accept the same, according to the usage of merchants, but that the said A B did not, at the said time, when the said bill was presented as aforesaid, nor at any other time accept or pay the same, but then and there wholly refused so to do; whereupon the said bill of exchange, thereafterwards, viz. on &c., at &c., was duly protested for non-acceptance thereof; of