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bearer ; and in the ftatement of fuch a note, that the maker 

 thereby protnifed to pay fuch a fum to tlic bearer. 



As to tlie/roo/"that is necctrar)- in aftions on hills or notes, 

 we may obferve, that the plaintiff muft, in all cafes, prove fo 

 . mMch of what is necelfary to entitle him to his aftion, anil of 

 what mail be ftatcd in his declai'ation, as is not, from the 

 nature of the thing, and the fituation of the parties, ntceda- 

 rily admitted. In an aAion againll the acceptor, it is a ge- 

 neral rule that the drawer's hand-writing is admitted ; that 

 of the acceptor mufl of couife be proved ; and that of every 

 perfon, through whom the plaintiff, from the nature of the 

 tranfaclion, mull ncceffarily derive his title. On a bill pay- 

 able to bjarer, in an attion againll the acceptor, he has only 

 to prove the hand-writing of the acceptor himftlf ; but in 

 cafe of a bill payable to order, the plaiiitiff mull prove the 

 hand-writing of the very payee who mull be the firll indorfer. 

 In cafe of a transfer by delivery, the plaintiff may be called 

 upon to prove that he gave a good conlideration for the bill 

 or note, without the knowledge of its having been flolen, or 

 of any of the names of the blank indorfers having been 

 forged. In an aftion by the indorfee againft the drawer, 

 the fame rules obtain with refpcft to proof of tlie hand-writ- 

 ing of the indorfers, as in an aftion againll the acceptors. 

 That of the drawer himfelf muft of courfe be proved ; and 

 it mufl alfo be proved that tlie plaintiff has ufed due dili- 

 gence. From the rule, that in an aftion againll the drawer 

 or acceptor of a bill payable to order, there mud be proof 

 of the lij^nature of the payee, firil indorfer, and all thofe to 

 whom an indorfement has been fpecially made, arofe tlie 

 qucllion, which long and greatly agitated the commercial 

 world, on the fubjeft of indorfements in the name of " fic- 

 titious payees." A bill, payable to the order of a fiftitious 

 perfon, and indorfcd in a fictitious name, is not a novelty 

 among merchants and traders. But in the years 1786, 7, 

 and 8, two or three houfes, having conneftion in trade, and 

 entering into engagements far beyond their capital, under an 

 apprehenfion that the credit of their own names would not 

 be fufBcient to procure currency to their bills, adopted, to 

 a very extenfivc degree, a praftice which had before been 

 found convenient on a fmaller fcale. For a confiderable time, 

 whilfl money could be procured for the payment of thefe 

 bills by the acceptors or drawers, and they had fufhcient cre- 

 dit with the holder to have them renewed, the fubjecl of 

 thefe fiftitious indorfements was not quellioned. But when 

 credit failed, and a cominifTion of bankruptcy became necef- 

 fary, the other creditors felt it their iiiterell to refill the 

 claims of the holders of thefe bills, and inhfled that they 

 Ihould not be allowed to prove their debts, becaufe they 

 could not conform to the general rule of law, requiring proof 

 of the hand-writing of the lirfl indorfer. The chancellor, 

 when the queflion came before him by petition, direfted trials 

 at law. From the decifions in confequence of thefe trials, 

 the principal of which was affirmed in the Houfe of Lords, 

 and which have fettled that fuch bills are to be confidered as 

 payable to hearer", it follows, that proof of the acceptor's 

 hand only is fufficient to entitle the holder to recover 011 the 

 bill ; and in a particular cafe, where the bill was drawn by 

 the defendant and others on the defendant, it was determined 

 that a bond file holder for a valuable confideration miirht re- 

 coyer the amount againll the acceptor in an aclion (or fnomy 

 pah!, or money had and received. The tffeft of the determi- 

 nation of the judges in the Houfe of Lords, with refpeft to 

 the principal cafe above alluded to, is as follows. If a bill of 

 exchange be drawn in favour of a fiftitious payee, with the 

 knowledge as well of the acceptor as the drawer ; and the 

 name of fuch payee be indorfed on it by the drawer, with 

 the knowledge.of the acceptor, whicii fiftitious indorfement 



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purports to be to the drawer himfclf or his order; and then 

 the drawer indorfes the bill to an innocent indorfer for a va- 

 luable confideration, and afterwards the bill is accepted ; 

 but it does -lot appear that there was an intent to defraud 

 any particular perfon ; fuch innocent indorfee for a valuable 

 confideration may recover againll the acceptor, as on a bill 

 payable to bearer. Perhaps alfo, in fuch cafe, the innocent 

 indorfee might recover againil the acceptor, as on a bill pay- 

 able to the order of the drawee, or on a coant Hating the 

 fpecial circumllances. On other cafes, afterwards brought 

 before the Houfe of Lords on demurrers to evideflce, the 

 judges gave their opinion, that it was not competent to the 

 defendants to demur ; and that on the record, as Hated, no 

 judgment could be given. The whole difclofed a fyftem of 

 bill-negotiation to the amount of a million a year, on fifti- 

 tious credit, which ended in the bankruptcy of many ; but 

 which had at leall the good effeft of fhewing that the obli- 

 gations of law are not fo eafily eluded as thofe of honour and 

 confcicnce. 



In an aftion by an indorfee againft an indorfer, it is not 

 neceffary to prove either the hand of the drawer or of the 

 acceptor, or of any indorfer before him againll whom the 

 aftion is brought, every indorfer being, with refpeft to fub- 

 fequent indorfees or holders, a new drawer. Where an aftion 

 is by one indorfer, who has paid the money, proof mull be 

 given of the payment. In an aftion by the drawer againft 

 the acceptor, where the bill has been paid away and returned, 

 it is necelfary to prove the hand-writing of the latter, de- 

 mand of payment by him, and refufal, the return of the bill, 

 and payment by the plaintiff. In an aftion on the cafe by 

 the acceptor againft the drawer, the plaintiff muft prove the 

 hand-writing of the defendant, and payment of the money 

 by himfelf ; or fomething equivalent, as his being in prifon 

 on execution. Where a bill is accepted, or a bill or note is 

 drawn or indorfed, by one of two or more partners, on the 

 partnerfliip's account, proof of the lignature of the party 

 accepting, drawing, or indorfing, is fufficient to bind all the 

 rell. When a fervant has a general authority to draw, accept, 

 or indorfe bills or notes, proof of his lignature is fufficient 

 againft the mailer ; but his authority mull be proved, as 

 that it was a general cuftom for him to do fo, &c. An ac- 

 tiou on a bill of exchange being by an executor, and upon a 

 debt laid to be due to teftator, it was held neceflary to prove 

 that the acceptance was in the life-time of the teftator. 

 Where the defendant fufiers judgment by default, and the 

 plaintiff executes a writ of inquiry, it is fuf&cient for the lat- 

 ter to produce the note or bill, without any proof of the de- 

 fendant's hand ; and on fuch judgment, a writ of inquiry 

 feems now to be unneceffary. 



As to the different fubjefts of defence, with regard to 

 bills of exchange and notes, the moft ufual are thofe which 

 arife either from the total want of confideration, or from the 

 illegality of the confideration for which the bill or note was 

 given. See Consideration. 



If a bank-bill, payable to A. B. or bearer, be loft, and 

 it is found by a flranger, payment to him would indemnify 

 the bank ; yet A. B. may have trover againft the findir, 

 though not againil his affignee for valuable confideration, 

 which creates a property. If the poffefTor of a bill acci- 

 dentally lofes it, he mufl caufe intimation to be made by a 

 notaiy public before witnefles, that the bill is loft or miflaid, 

 and requiring that payment be not made of the fame to any 

 perfon without his privity. And by ftat. 9 & loW. III. c. 17. 

 if any inland bill of exchange for 5I. or upwards fhall be 

 loft, the drawer of the bill fliall give another of the fame 

 tenor, fecuiity being given to indemnify him, in cafe the 

 bill fo luft be found again. If a biU loll by the pofleflor 



fhould 



