either state it, or (137) shew that it was not necessary; but the omission can (138) only be taken advantage of by a special demurrer. In stating the protest, if the plaintiff allege, "that (139) he protested the bill or caused it to be protested," it will be unobjectionable, if the defendant pleads over. 23. "Notice." If the defendant is primâ facie entitled to notice, it is essentially necessary to state that he had (140) notice, or to shew that he was not entitled thereto. Under an allegation of notice, it may be questionable whether evidence can be given of what (137) In Rogers v. Stephens, supra, p. 234. note (117). Lord Kenyon, and afterwards the court, held a protest for non-acceptance not necessary to support an action against the drawer, because it appeared he had no effects in the hands of the drawee. See Legge v. Thorpe, ante, p. 238. note (119). And see the form of averring that the drawer had no effects in the hands of the drawee, in Legge v. Thorpe, 12 East. Rep. 171. (138) Vide supra note (136). (139) Witherby v. Sarsfield, 1 Show. 125. The declaration upon a foreign bill stated that the plaintiff "protested it, or caused it to be protested;" the defendant pleaded that he was not a merchant, and upon demurrer had judgment. A writ of error was brought; and it was then, for the first time, urged that the allegation that the plaintiff protested the bill or caused it to be protested, was uncertain; but the court thought it well enough, reversed the judgment below, and then judgment was given for the plaintiff. (140) See Rushton v. Aspinall, ante, p. 322. n. (123). And see the form of averring that the drawer of a bill had no effects in the hands of the drawee, in Legge v. Thorpe, 12 East, Rep, 171, would excuse notice (141), or whether to let in such evidence, the facts to excuse notice should not be pleaded specially. (141) 24. "To the said John." In an action upon a bill or note stated upon the count to be payable to the order of the plaintiff, it is sometimes (142) usual, though (143) unnecessary, to insert here an allegation that the plaintiff made no order; but the better way upon a bill or note made so pay (141) Corey v. Scott, B. R. Tr. 1 Geo. 4. 3 Barnew. 619. In an action by indorsee against drawer, the declaration stated presentment for payment and dishonour, whereof drawer afterwards, &c. had notice: at the trial there was no evidence of notice, but plaintiff proved that defendant had no effects in the drawer's hands: defendant rebutted this proof by shewing that he and the acceptor only lent their names to a subsequent indorser, and therefore that defendant on paying the bill would have been entitled to sue the acceptor and that subsequent indorser. Under these circumstances Abbott C. J. held notice necessary, and nonsuited, giving plaintiff to move to enter a verdict: rule nisi accordingly. On cause shewn, it was urged that under the allegation of notice plaintiff had no right to give evidence of what went only to excuse want of notice, and of that opinion were Bayley and Holroyd Js.; but on the merits, they agreed with Abbott C. J., that defendant was entitled to notice; and the rule was discharged. See 12 East. 171. (142) It was done in Fisher v. Pomfret, Carth. 403. (143) Vide Frederick v. Cotton, ante, p. 314. note (101). See Lill. Ent. 90. 29, 41. 44, 55. 73. Lutw. 1589. Sheldon v. Occarsen, Tr. T. 41 Geo. 3. 12 June, 1801. C. B. Roll. 715. Special demurrer to a declaration on a bill stated to be payable to the order of the plaintiff; and the cause assigned was, that it was not stated that the plaintiff had made no order: the court said, that it was too clear for argument, and gave judgment for the plaintiff. Best Serj. was to have argued for the defendant. S. P. Smith v. M'Clure, 5 East. Rep. 476, able, is to state according to the legal operation, that it was made payable to the plaintiff, and then this allegation would be impertinent. 25. "When, &c." In an action against the acceptor of a bill or maker of a note not payable immediately upon presentment, instead of alleging that the defendant became liable, and promised to pay when he should be thereunto afterwards requested, he is stated to have become liable, and promised to pay according to the tenor and effect of the bill and acceptance in the one case, and of the note in the other. 26. "And, &c." This clause is unnecessary in an action against either the (144) acceptor of a bill or the maker of a note; and it may be doubted whether (145) it is essential in any other. 27. "And the said, &c." This averment is not, it is apprehended, ever necessary; the want (146) of it is certainly cured by verdict. (144) Wegersloffe v. Keene, Str. 214. In assumpsit against the acceptor, an objection was taken to the promise as stated; sed per Fortescue J., "The plaintiff need not set out any promise. In Lowther v. Conyers, which was upon a promissory note, they left out super se assumpsit, and yet it was held well enough, for the law raises a promise." (145) Starke v. Cheeseman, Carth. 509. Salk. 128. After judgment by default in an action against the drawer of a foreign bill, it was objected in arrest of judgment, that it was not stated in the declaration that the defendant promised to pay the money after the protest was made; but it was answered, that the law did raise the promise upon the custom of merchants, and therefore it was not necessary to lay an actual promise; and the plaintiff had judgment. (146) Simmonds v. Parminter, 1 Wils, 185. 4 Bro. Parl. Cas. In an action by a person who has paid a bill under protest, for the honour of drawer or an indorser, it is sufficient for him to allege that he, according to the usage and custom of merchants, paid the bill; he need not specify to whom he paid it. (147) 604. The declaration upon two foreign bills for the payment of 4000 and 5000 dollars did not state what their value was, and after a demurrer this was urged as a ground to arrest the judgment; but the court gave judgment for the plaintiff, and upon a writ of error that judgment was affirmed. (147) Cox v. Earle, 3 Barnew. and Ald. 430. Declaration against acceptor on bill paid by plaintiff under protest for the honour of the second indorser stated, that plaintiff, according to the usage and custom of merchants, paid the bill under protest: special demurrer, on the ground that it was not alleged to whom plaintiff paid it, or that he paid it to the holder, or that plaintiff thereby became the legal holder thereof: sed per cur. on argument, payment to a wrong person would be no payment; this payment is alleged to have been according to the usage and custom of merchants, and plaintiff would be bound to prove payment to the person entitled to receive. Judgment for plaintiff. CA P. X. Remedy upon a Bill or Note by proving it under a Commission of Bankruptcy, or suing out a Commission thereon. Though the Bill or Note is not due, p. 333. Though the Holder did not become so until after the Though the Bankrupt had committed an Act of In case of Party who takes up the Bill or Note after Though he was only an Accommodation Party, p. 340. In case of Accommodation Parties who became so be- Bankers accepting Bills, and having Bills remitted, p. 349. Reciprocal Accommodation without specific Exchange, p. 350. Under Commissions against several Parties, p. 355. To what Set-off liable. p. 359. WHEREVER the holder of a bill or note is entitled to compel a person to pay it, he (1) may, in the (1) In ex parte Dewdney 15 Ves. 495. Lord Eldon C. held that where recovery in an action on a bill would be barred by a plea of the statute of limitations, and all relief in equity would |