pen in this cafe, he being a fictitious perfon; but here there is no order by William Green for transferring the right of action to Mr. Smith the holder of the bill, infomuch as there is no real indorfement thereon; and therefore that he cannot put himself into a fituation capable of recovering the money. On the other hand Mr. Smith contends, that he received the bill fairly, and in the ufual courfe of trade, and took the ufual precautions againft forgeries, and that Mr. Hammond the acceptor cannot take the advantage of his inability to prove the hand-writing of William Green the first indorfer, but must pay the money. To fave expence it is agreed, that both parties fhall be governed by your opinion, Whether, under all the circumftances before ftated, Mr. Hammond, as the acceptor of the bill in question, can be compelled by law to pay the amount to Mr. Smith?

I Am clearly of opinion that, in the cafe stated, Mr. Hammond, the acceptor of this bill, cannot be compelled by law to pay the amount. His acceptance admits the hand of the drawer, but nothing more; the indorfee muft derive his title through the original payee and first indor

fer, which cannot be done here fince none fuch exifts. Smith and Hammond are both equally innocent; therefore the lofs muft reft, as between them, where it now ftands, which, under the circumstances ftated, is upon Smith.

CASE.

EDW. BEARCROFT.

FIRST, A. a merchant refident in foreign parts, draws a bill at three months fight on B: and payable to C. both refident in London. The faid bill is accepted by B. and delivered over to C. whofe property it is. C. afterwards gives the faid bill in truft to B. who, while it is in his poffeffion, fecretes himself from his creditors, and afterwards becomes a bankrupt; but prior to the docket being ftruck against B. C. goes to B. and claims the bill as his property, which B. immediately delivers up to him.

Question. Whether the faid bill is actually the property of C. at the time above mentioned, although then in the poffeffion of B. but in truft? Or whether it becomes a part of the eftate of B. to which his creditors have a legal claim to their dividend upon? Or, if the creditors can have no juit claim, whether, on C. paying the faid bill away to D. its being regularly prefented when due to B. for payment, and being noted for non-payment, has not D. a juft right to protest the bill and return it back to A. who is the drawer, and to use coercive meafures to enforce the payment?

The nature of the truft upon which the bill was put into the hands of B. the acceptor, is not ftated; but if he held it merely in truf, and without any claim of beneficial intereft in it, I am of opinion that it remains the property of C. and that the creditors of B. have no claim whatever upon it. On the contrary, it

may be proved as a debt under the commiffion, and C. would be entitled to a proportionate dividend with the other creditors. The holder of the bill should prefent it for payment to B. when due, and have it regularly protested, after which he will have a clear right to recover the amount against A. the drawer.

Z 2

C. has

SECOND, C. has accepted two bills to the amount of five hundred pounds and upwards, for which he never received the leaft value for doing the fame, merely out of friendship to B. to ferve his credit until his remittances came round. B. takes the faid bills to D. (a banker) in order to get them discounted, which D. refufes, but agrees to advance one hundred and fifty pounds to B. on account of them. Soon after which B. commits an act of bankruptcy by fecreting himself; but before the docket is ftruck against B. C. applies to D. to enquire of him what fum was lent to B. on account of the bills; and upon being informed, C. tells D. he wishes to pay him the one hundred and fifty pounds B. has had advanced him upon the bills, if he will deliver them up to him on his fo doing.

Question -Will D. be fafe in delivering up the bills in queftion to C.
or whether it will be requifite for B. to appear with C. at the
houfe of D. and there to perfonally deliver the bills over to C
as his property in the prefence of D. who might then pay
D. the one hundred and fifty pounds he had advanced there-
on ?
Or what other mode can be devised in order to secure
C. and D. from farther trouble?

This point, though the juftice of the cafe is perfectly clear, is attended with fome difficulty, and it seems doubtful whether D. having full notice of the bankruptcy, can deliver up the bills in question to C. or even to B. himself, without being fubject to an action of trover from the affignees of B. if they should tender the one hundred and fifty pounds, and demand the bills; for though I am of opinion that B. or his affignees could not recover either in law or equity the amount of the fe bills against C. if it can be clearly proved that they were accepted merely for accommodation, and without any valuable confideration, yet I doubt whether D. can take upon himfelf to decide between them, and he would certainly do it at his own risk. If the bills are over due, then I think C. need have no apprehenfion, from their falling into the hands of the affignces. But if the bills are not yet due, and the affignees getting the poffeffion of them from the banker (which, on tender of the one hundred and fifty pounds, I think he could not refufe) fhould be dishonest enough to pay them away for a valuable

confideration to perfons who had no notice of their being mere accommodation bills; C. could then make no defence against such holders of the bills.

If the affignees are fair men, 1 fhould think, on being informed of the true cir. cumftances of the cafe, they would confent to the delivery of the bills to C. But if they will not, I think the most fecure way for all the parties will be, for C. to file a bill of equity against B. D. and the affignees of B. praying that the bills may be delivered up, on payment of the sum of one hundred and fifty pounds due to D. and that he C. may come in as a creditor to that amount upon the estate of B. which I fhould think might be done at no very large expence, as a very short bill would be fufficient, But if there is no apprehenfion of the affignees getting poffeffion of the bills and paging them away before due, it will be most prudent for C. to lie by, as I am clearly of opinion, that the amount of the bills can never be recovered against him by any person who has notice that they were accepted without confideration.

J. ADAH.

ON PROMISSORY NOTES. MIDDLESEX, f. A. B. complains of C. D. being, &c. in a plea of trefpafs on the cafe, &c. for that whereas the faid de

fendant

fendant heretofore, to wit, on (a) the seventh (b) day of October, A. D. 1790, to wit, at (c) Weftminster, in the faid county of Middlefex, made and figned (d) his certain note in writing, commonly called a promillory note, bearing date the day and year aforefaid (e), and (1) thereby promised (f) to pay to the faid (3) Bur. 375. plaintiff, by the name of Mr. A. B. or order, four months after the date of the faid note, the fum of ten pounds ten fhillings for value received by him the faid defendant, and then and there delivered (g) the faid note to the faid plaintiff; whereby, and by reafon of which faid several premises, and by force of the ftatute in fuch cafe made and provided, the faid defendant became liable to pay to the faid plaintiff the faid fum of money in the faid note fpecified, according to the tenor and effect of the faid note (h); and being fo liable, he the faid defendant, in confideration thereof, afterwards, to wit, on the fame day and year aforesaid, at (i) Westminster

(a) It was formerly the practice (and indeed we now frequently meet with it) to alledge the note to be made after the first day of May 1705 (the day mentioned in statute 3. and 4. Anne, c. 9. which gives the action on promiffory notes); but as the note itfelf appears to be made fubfequent to it, there is no neceffity to take notice of it; though it may be otherwise in cafes where the day fet forth is material. In that cafe, as the itatute fpeaks of a thing as arifing after a particular day, so it should be otherwife hewn than under a fcilicet, or by an allegation that is not material. In fhort, it should be pofitively alledged to have so happen. ed, in order to bring the cafe within the ftatute.

(b) The day is material in this cafe, as it defines the contract on which the action is brought. 1. Stra. 22.

(c) The place is not materjal in an action upon an inland note, nor do I conceive it to be fo in the cafe of a foreign one; though it is otherwife with bills of exchange, which are governed by local customs as well as pofitive ftatutes: yet it is ufual, where a note is made abroad, and fo appears upon the face of it, to alledge it to have been made in parts beyond the feas, that is to fay, at Jamaica, in the Wifi Indies, to wit, at Weftminster (the ufual venue).

(d) This is the word made ufe of in the statute of Anne; and it seems to have the preference of the ufual word fubfcribed, inasmuch as it is equally applicable to a fignature by a mark as to a written one. According to one decifion (2. Lord Raym. 1484.), however, neither one expreffion nor the other is abfo-, lutely neceffary, both being included in the word made. Vide alfo 2. Lord Paym. 1377. and 1542. Str. 609.

(e) If the note have no date, you will omit this allegation of courfe. 2. Show. 442.

(ƒ) Be careful to recite the note ace curately, as a variance will be fatal. You need not, however, recite it literally, as in the cafe of bad spelling and such like inaccuracies.

(g) This feems to be a material allegation, as the bare making of a note, without delivering it, seems of no avail ; yet the want of the averment may be merely an informality, and of course the fubject of a special demurrer, and incapable of being taken advantage of in any other way. It also feems to be more formal to ftate the delivery of the note after the recital of it than before, and then go on and fay, that by reason of the feveral premifes (of which the delivery is one) and by force of the statute, &c. the defendant became lable.

(b) This will ever be the cafe where the action is between the original parties to the note; but where it is brought against an indorfer or other collateral party, in confequence of the drawer's default at the end of the time appointed for payment of the note, there the obligation of payment on fuch indorfer or third perfon is imediate and direɛ, or, in legal language, upon request, and rot according to the tenor of, or in any manner dependent up. the note or inftrument.

on,

(i) As the promise is a transitory matter, we make no difference in the place bere, though the note be a foreign one. In the beginning of the declaration, the place where the note was really made is fet out as defcriptive of the instrument, but here it is only applied to the promise, which, being transitory, requires no specific defcription.

Z3

aforefaid,

(2) 12. Mod, 380.

aforefaid, (k) undertook, and faithfully promised the faid plaintiff, to pay him the faid fum of money in the faid note fpecified (/), according to the tenor and effect of the faid note. And whereas, &c. (It is ufual to add a Count for money had and received, of which a note has been deemed (2) evidence; but as it feems to be better evidence of an account fiated, make a rule of inferting fuch a han, Burr.1516. Count; and by way of caution, when the action is between the original parties, it is prudent to add Counts upon the confideration (3) of the note, left the plaintiff fhould not be able to establish the drawer's hand-writing.)

Grantv. Vaug

(3) B. R. E. 18. Geo. 3. Peckham v.

Wood, Bl. 445. Bailey on Bills and Notes, 48. 17. Morrifon Lee, B. R. H. 26. Geo. III. Com. 43. I T. R. 49. 2. T. R. 71. Atk. 182. Bull. N. Pri. ed. 1790, 274. Str. 1155. Doug. 70%. Confideration illegal, Burr. 1077. 5 Geo. II. 30. f. 11. 9. Ann. c. 14 f. 1. 12. Ann. ft. 2. c. 16. Anon. B. R. H. 26. Geo. II. But an action will lig for the money lent (fee Bailey on Bills and Notes, 70.), though the confideration may be money lent and loft at play.

Payee against

Maker.

(4) As this affumpfit is merely an affumpfit by implication of law, out of the preceding matter, which is an express afumpfit in itself, fo the want of it may be immaterial after a verdict, though perhaps bad, upon a special demurrer. It is fo in the cafe of bills of exchange (Carth. 510. Lord Raym. 574. 1. Salk. 129.); and of courfe is fo in that of promiffory notes, which are clearly exprefs promises in themselves. And in the cafe of Gregory v. Walcup, it was held, that

in an action against the accepter of a bill of exchange, it was not necessary to alledge a promise of payment, as the acceptance is an actual affumption, and the declaration need not alledge more. Comyns's Rep. 75. pl. 49.

(4) The affumpfit nuft of courfe be governed by the fame rules as the obligation that raifed it, and of confequence muit be co extentive and commenfurate with it. Bailey on Bills and Notes, 62. Str. 224

FOR that whereas the faid IV. Layton (defendant's teftator) in the Executor of his life-time, to wit, on the twenty-third day of Auguft, A. D. 1765, at Weltmiafter, in the county aforefaid, made and figned his certain note in writing, commonly called, &c. bearing date, &c. and thereby promifed to pay to the faid, &c. by the name of, &c. [fee laft Precedent], and then and there delivered, &c. ; whereby, and by reafon of which feveral premifes, and by force of the ftatute, &c. the faid W. L. in his lifetime became liable to pay, &c. according, &c.; and being fo liable, he the faid W. L. in confideration thereof, afterwards, in his lifetime, to wit, on, &c. at, &c. undertook, &c. And whereas the faid W. Layton afterwards, in his lifetime, to wit, on, &c. (fame day after the note became due, fo as it be before the death of defendant's teftator.) (Add the Counts fpoken of at the end of the preceding Precedent, Common con with the following conclufion.) Yet the faid IV. Laytın (declufion in af- fendant's teltator) in his lifetime, and the faid defendant after his fumpfit to а declaration death, not regarding the faid feveral promifes and undertakings of gainst an execu, the faid W. Layton, but contriving and fraudulently intending tor of maker of craftily and fubtilly to deceive and defraud the faid plaintiff in this a promitory behalf, hath not, nor hath either of them, paid the faid feveral fums of money in thofe promises and undertakings mentioned, or any or either of them, or any part thereof, to the faid plaintiff, although fo

note.

a

to do the faid William Layton in his lifetime, to wit, on the day and year laft aforefaid, and often afterwards, and the faid defendant after the death of the faid W. Layton, to wit, on the

day of A. D. , (any day after the death of defendant's teftator, and before the bringing of the action) and often both before and afterwards, were refpectively requested by the faid plaintiff, to wit, at, &c. aforefaid, in the county aforefaid; but they, or either of them, to pay the fame, or any part thereof, have, and each of them hath, wholly refufed and neglected, and the faid defendant ftill refufes to pay the fame to the faid plaintiff, to the damage of him the faid plaintiff of fifty pounds; and therefore he brings his fuit, &c.

the Maker.

claration in af.

FOR that whereas the faid defendant, in the lifetime of the faid Executor of A (plaintiff's teftator), to wit, on, &c. made, &c. (as in the laft Payee against Precedent, only fubftituting the plaintiff's teftator for defendant's); and whereas the faid defendant afterwards, in the lifetime of the faid A. (plaintiff's teftator), to wit, on, &c. (any day after the note became duc, fo as it be in the lifetime of plaintiff's teftator), [the fame Counts as in the laft Precedent, with the following conclufion.] Yet the faid defendant, not regarding, &c. but contriving, Common con&c. craftily and fubtilly to deceive, &c. the faid A. (plaintiff's tef- clufion to a des tator) in his lifetime, and the faid plaintiff, executor as aforefaid, fumpfit at fuit fince his death,hath not paid the faid feveral fums of money in thofe of an Executor. promifes and undertakings mentioned, or any or either of them, or any part thereof, either to the faid A. (plaintiff's teftator) in his lifetime, or to the faid plaintiff fince his death, although fo to do he the faid defendant was requested by the faid A. (plaintiff's teftator) in his lifetime, to wit, on the day and year last aforefaid, and often afterwards, and by the faid plaintiff as fuch executor as aforefaid fince the death of the faid A. (plaintiff's teftator), to wit, on, &c. (any day after death of plaintiff's teftator, and before bringing the action), and often both before and afterwards, to wit, at, &c. aforefaid; but he to pay the fame, or any part thereof, hath always hitherto wholly refufed and neglected, and he doth ftill refufe, to pay the fame to the faid plaintiff as fuch executor as aforefaid, to the damage of the faid plaintiff, as fuch executor as aforefaid, of pounds; and therefore he brings his fuit, &c.: and he also brings into court here the letters teftamentary of the faid A. (plaintiff's teftator), whereby it fully appears that the faid plaintiff is executor of the laft will and teftament of the faid A. and hath administration thereof, &c,

Payees, partners,

FOR that whereas the faid 7. and T. (the defendants and makers), at the feveral and refpective times hereafter mentioned, againit Makers,

partners, upon

a note made by one of them, with directions as to declaration on note made by both.