Where a note is made payable at a month or months after date, the computation must be (contrary to the general rule of law) by calendar and not by lunar months.

Where a note is in the hands of an indorsee, and he demands payment thereof from the maker, who refuscs or omits to pay the same, notice of such refusal or default ought to be given by the indorsee himself to the prior indorser or indorsers (if more than one) within a reasonable time; otherwise the indorser will be discharged.

Action against defendant, as indorser of this note, "one month after date, I promise to pay to Wm. George, or order, the sum of 167. for value received." John Hopley. Indorsed, Wm. George. This note George had given in payment to the plaintiff; it became due 2d May, and on 5th May the plaintiff's banker (after three days grace) demanded it of Hopley. Hopley desired two or three days tinie to pay it in, and so from time to time, which were given him, till 13th May, when he told the banker he could not pay it. On the 14th, Hopley failed, and became a bankrupt. On plaintiff's applying to George for payment, George told him he should have applied before, on Hopley's first refusal, and that he now did not think himself liable to pay it, whereupon this action was brought. Lord Mansfield, C. J. "The question is, who is to bear the loss, as Hopley, the drawer, has failed? Now it is so necessary for trade, that where a bill of exchange is drawn on one man, and made payable to another, that, if the person to whom it is payable, either wilfully or through neglect, omits to call at the time it becomes due, it is the constant course of mercantile custom in the city of London, that he shall bear the loss and not the other. This likewise is the rule on indorsed notes, which are in nature of inland bills of exchange; nothing is so certain as this rule, and great inconvenience would follow from a different mode of proceeding. It has been truly said, that the law has not fixed any precise time when the neglect of the indorsee shall be said to make him liable; but I remember a case determined, where a bill became due at two o'clock on Saturday afternoon, the person who gave the note became a bankrupt at five o'clock on Monday afternoon; the question was, whether the indorsee had not neglected to call for his money, and it was holden, that he had. The present case is not that of neglect; the note is dated on 2d April, consequently becomes due on 2d May, but by the custom of the city there are three days of grace; the banker, who has the note in his hands, and who in this

e See Tindal v. Brown, 1 T. R. 167.
d Anderson v. George, London sit-

tings after Trin. T. 1757. coram Lord Mansfield, C. J. MSS.

case, being the plaintiff's agent, is to be considered as one and the same person with the plaintiff, comes on 5th and demands payment; the indorser and all the parties live in town; the banker gives Hopley indulgence to pay it from 5th to 13th, without giving any notice to the indorser, which, if he had done, it would have urged the indorser to get his money. Now here is no neglect of application. The case is still stronger; here is an actual credit given for eight days, and the question is, who gave the credit. We cannot go into any consideration of Hopley's circumstances at the time; they might be very bad; and yet if he had been arrested on 5th May, we cannot say he would not have paid the money. I am therefore of opinion, that the loss, (though this is a hard case,) ought to be borne by the person who gave the credit." Verdict for the defendant.

Action against the defendant as indorser of a promissory note, due May 5th, 1805. The plaintiff proved the defendant's indorsement; and also, that in the year 1807, the defendant being requested to pay the note, he promised that he would, but prayed for further time. There was no evidence of the presentment of the note to the maker, or of any notice of its non-payment being given to the defendant, nor did it appear that when the defendant so promised to pay, he knew of any application for payment having been made to the maker. For the defendant it was contended, that the subsequent promise did not dispense with proof of the presentment and notice, unless made with full knowledge of the laches of the holder. In the cases hitherto decided upon this subject, something appeared which might be considered a waver of any irregularity, with regard to the bill or note, which could not be inferred from a mere promise to pay, at a time when the party, without being aware of it, was discharged from his liability. But Bayley J. held, that where a party to a bill or note, knowing it to be due, and knowing that he was entitled to have it presented, when due, to the acceptor or maker, and to receive notice of its dishonour, promises to pay it; this is presumptive evidence of the presentment and notice, and he is bound by the promise so made. Verdict for the plaintiff.

But if the drawer or indorser, after being arrested without acknowledging his liability, merely offers to give a bill by way of compromise for the sum demanded, which offer is rejected, this does not supersede the necessity of notice.

e Taylor v. Jones, 2 Camp. N. P. C. f Cumming v. French, 2 Camp. N. P. C. 106.

105.

XI. Of the Declaration-Pleadings-Evidence-Con

clusion.

THE usual remedy on a promissory note is an action of assumpsit. In the first count of the declaration, the note ought to be set forth accurately, 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 statement in the declaration and the note produced in evidence, will be fatal.

As where in an action on a promissory notes, made by the firm of Austin, Strobell, and Shirtliff, who were declared against by the name of William A., Robert S., and William S., and it was proved that the firm consisted of William A., Daniel S., and William S., it was holden that the variance was fatal.

Where the maker of a promissory note makes a memorandum at the foot of it, that he will pay it at the house of A., as this does not form any part of the contract, it is not necessary to state it in the declaration; but if it forms a part of the body of the note, it must be stated, and it must be averred, that the note was presented for payment at that place, even in an action against the maker'.

In cases where several notes have been made by the defendant, and which are due and payable, a count on each note ought to be inserted in the declaration.

To the special count or counts, such of the common counts ought to be added as may be adapted to the circumstances of the case.

Although on a count for money lent, or for money had and received, a promissory note may be given in evidence, as affording a presumption that so much money was lent, or had and received, and although the jury, in case such evidence be not rebutted, will conclude against the defendant, yet it is advisable to declare specially on the note; for otherwise, in the case of a judgment by default, the usual reference to the master in B. R. or prothonotary in C. B. cannot be made to compute principal, interest, and costs'.

g Gordon v. Austin, 4 T. R. 611.
h Saunderson v. Judge, 2 H. Bl. 509.
i Sanderson v. Bowes, 14 East, 500.
adjudged on demurrer. See also

Roche v. Campbell, 3 Camp. N. P.C. 247.

k Str. 725.
Osborne v.

Noad, 8 T. R. 648.

Where a note is payable to A. or order, and indorsed, the indorser is considered as a warranter of the note; and, therefore, it is necessary, in an action brought against the indorser, to allege and prove a demand of the maker", and notice of default or refusal to pay within a reasonable time by the holder himself".

To an action on a promissory note, any plea may be pleaded which the law permits to be pleaded to actions founded on contract, e. g. accord and satisfaction, coverture, infancy, payment, statute of limitations, set-off, tender; as to which, see ante, tit. Assumpsit, s. IV. p. 114.-153.

To an action of assumpsit by A., B., and C., against D., as one of the indorsers of a promissory note drawn by E., in favour of C., D., (and himself) E., then in partnership, and by them indorsed to A., B., and C.; defendant pleaded in bar, that C. one of the plaintiffs, was liable as an indorser, together with D. On special demurrer the plea was holden to be good; Lord Eldon, C. J. observing, that the subject of this plea could not have been pleaded in abatement; because a plea in abatement ought to give a better writ, not to shew that the plaintiff can have no action at all. The effect, however, of a judgment for the defendant would be, that if a man made a note to himself and others carrying on business under a particular firm, and that partnership was dissolved, the promissory note could neither be put in suit as such, nor enforced as an equitable agreement, because on a promissory note stamp. Considering, therefore, the quantity of circulating paper in this country, standing under the same circumstances with the note in question, the consequence of such a decision might be highly injurious. However, the case of Moffatt v. Van Millengen was unanswerable.

Evidence. In an action on a promissory note, to which the general issue is pleaded, the plaintiff must prove every material allegation in the declaration.

It is a general rule, that to prove the contract the original note must be produced in evidence. This rule is dispensed with in special cases only, as where it can be proved, that the note has been lost or destroyed by the defendant, or that it is in the hands of the defendant, and that he has had notice to produce it'. In these cases a copy of the note, or parol evidence of its contents, may be received.

m Adjudged in C. B. E. 4 G. 2. cited by Lee, C. J. in 2 Str. 1087. recognised by Lord Mansfield, C. J. in 2 Burr. 676.

n Tindal v. Brown, 1 T. R. 167.

o Mainwaring v. Newman, 2 Bos. & Pul. 120.

p 27 G. 3 B. R. 2 Bos. & Pul. 124. n
(c.)

q Lord Raym. 731.
r2 Bos. & Pul. 39.

The remaining evidence necessary to support the action will vary according to the character in which the parties bring the action.

In an action by payee against the maker, the hand-writing of the maker must be proved by the subscribing witness, if any; if not, by some person who is competent to prove such hand-writing. In an action, by first indorsee against the maker, the same evidence as in the preceding case, together with proof of the indorsement to the plaintiff, will be necessary. In an action against an indorser, proof of the handwriting of the maker, or of any indorser prior to the defendant (except the first,) unless specially alleged in the declaration, is not necessary; but in this case it must be proved that payment was duly demanded of the maker, and that the maker refused to pay, or made default therein, and that notice of such refusal or default was given to the defendant within a reasonable time.

In an action against the maker of a note, although the promise be to pay the money at a particular place, it is not necessary to prove a presentment at that place; if the place of payment be mentioned in the margin or at the foot of the t

note'.

If a bill be payable or indorsed specially to a firm, evidence must be given that the firm consists of the persons who sue as plaintiffs; secus, if the indorsement be in blank. Ord y. Portal, 3 Camp. N. P. C. 239.

A. being in insolvent circumstances", B. undertook to be a security for a debt owing from A. to C. by indorsing a promissory note made by A. payable to B. at the house of D. The note was accordingly so made and indorsed, with the knowledge of all parties. Just before it became due, B. having been informed that D. had no effects of A. in his hands, desired D. to send the note to him, B., and said he would pay it, B. having then a fund in his hands for that purpose; the note was not presented at D.'s house till three days after it was due. It was holden, that C. could not maintain an action against B. on the note, not having used due diligence in presenting the note as soon as it was due to D. for payment, and in giving immediate notice to B. of the non-payment by D.; for B. had a right to insist on the strict rule of law respecting the indorser of a note, notwithstanding the particular circumstances of the case.

In an action by a second, third, or any subsequent indorsee, against the maker, where the first indorsement is in blank;

s Nicholls v. Bowes, 2 Camp. N. P. C. t Price v. Mitchell, 4 Campb. 200. 498. But see Sanderson v. Bowes, u Nicholson v. Gouthit, 2 H. Bl. 609. ante, p. 374.