BILL of EXCHANGE. 
receipt of part of the money from the drawer or indorfor, 
nor a promile by indorfement on the bill by the drawer to 
pay the refid ue, difcharge the holder’s remedy againft the 
acceptor. Doug. 238,(250.) 
Though the receipt of part from the drawer or indorfor 
be no difcharge to the acceptor, yet the receipt of part 
from the acceptor of a bill, or the maker of a note, is a 
difcharge to the drawer and indorfors in the one cafe, and 
to the indorfors in the other, unlels due notice be given of 
the non-payment of the refidue; for the receipt of part 
from the maker or acceptor without notice, is conftrued 
to be a giving of credit for the remainder, and the under¬ 
taking of the preceding parties is only conditional, to pay 
iri default of the original debtor on due notice given: but, 
where due notice is given that the bill is not duly paid, 
the receipt of part of the money from an acceptor or ma¬ 
ker will not difcharge the drawer or indorfors from the 
refidue ; for it is for their advantage, that as much fhould 
be received from others as may be. 1 Ld. Raym. 744. 2 
Stra. 745. 1 Wilf. 48. Bull. N. P. 271. So the receipt of 
part from an indorfor, is no difcharge of the drawer or 
preceding indorfor. By flat. 3 and4 Anne, c. 9, it is enact¬ 
ed, “ that, if any perfon receive a bill of exchange for 
and in fatisfa&ion of any former debt or fum of money 
formerly due to him, this fhall be accounted and efteemed 
a full and complete payment of fuch debt; if fuch perfon 
accepting of any fuch bill for his debt, do not take his 
due courfe to obtain payment of it, by endeavouring to 
get the fame accepted and paid, and make his protcli ac¬ 
cording to the directions of the aft, either for non-accep¬ 
tance or non-payment.” 
The abtion which is now ufually brought on a bill of 
exchange, is a fpecial aftion on the cafe, founded on the 
cuftom of merchants. That cuftom was not at firfl recog¬ 
nized by the court, tinlefs it was fpecially fet forth, and 
therefore it was deemed necelTary to fet forth, by way of 
inducement, fo much of it as applied to the particular 
cafe and impofed on the defendant a liability to pay. But 
when the cuftom of merchants was recognized by the jifdges 
as part of the law of the land, and they declared they 
would take notice of it, as fuch, ex officio , it became un- 
neceflary to recite the cuftom at full length ; a limple al¬ 
legation, that “the drawer, mentioning him by his name, 
according to the cuftom of merchants, drew his bill of 
•xchange, See." was fufficient. And if the plaintiff, (fill 
adhering to former precedents, thought proper to recite 
the cuftom in general terms, and did not bring his cafe 
within the cuftom fo fet forth ; yet if by the law of mer¬ 
chants, as recognized by the court, the cafe as (fated in- 
titled him to his action, he might recover; and the fetting 
forth of the cuftom was reckoned furplufage, and rejected. 
See 1 Show. 317. 2 Ld. Raym. 1542. Whether the drawer 
of a bill, or the indorfor of a bill, or of a note, receiving 
the bill or the note in the regular courfe of negotiation 
before it has become due, can maintain an action on it 
againft the acceptor or maker, in the character of indorfee, 
feems undecided ; but there is a cafe which clearly flievvs 
that a drawer or indorfor cannot maintain an action againft 
the acceptor in the character of indorfee, where the in¬ 
dorfement is after the refufal of payment ; becaufe when 
a bill is returned unpaid, either on the drawer or indor¬ 
for, its negotiability is at an end. Becktn Robley, Tr. 14 
Geo. 111. 1 H. Black. Rep. 89. 
The action therefore in which the drawer or indorfor, 
after payment of the money in default of the acceptor, 
may recover, the firft againft the acceptor, and the latter 
againft any of the preceding parties, muff be brought in 
their original capacity as drawer or indorfor, and not as 
indorfee. Vid. Simonds v. Parminter, 1 Wilf. 18 c. 4 Term 
Rep. 82, 5. 
If the drawee, without having effects of the drawer, 
accept and duly pay the bill without having it protefted, 
he may recover back the money in an adtion for money 
paid, laid out, and expended, to the ufe of the drawer. 
Vid. Smith v. Nilfen, 1 Term. Rep. 269. Inftead of bring¬ 
ing an adtion on the cuftom or on the ftatute, the plainti^ 
may in many cafes ufe a bill or note only as evidenc e 
in another adtion ; and, where the inftrument wants fome 
of the requilites to form a good bill or note, the only ufe 
he can make of it is to give it in evidence ; or, if the 
count on the inftrument be defedtive, he may give it in 
evidence in fupport of fome of the other counts for money 
had and received, or money lent and advanced, according 
to the circumftances of the tranfaCtion. Tatlock v. Harris, 
3 Term. Rep. 174. 
The holder of the bill or note may fue all live parties 
who are liable to pay the money, either at the fame time 
or in fucceflion ; and he may recover judgment againft all, 
if fatisfadtion be not made by the payment of the money 
before judgment is obtained againft all ; and proceedings 
will not be (laid in any one adlion but on payment of the 
debt and cofts in that action, and the cofts in all the others 
in which he has not obtained judgment. Vid. Golding v. 
Grace, 2 Bl. Rep. 749. Cut, though he may have judg¬ 
ment againft all, yet he can recover but one fatisfadion ; 
yet, though he be paid by one, he may fue out execution 
for the cofts in the feveral adtions againft the others. 2 
.Vefey 115. 1 Stra. 515. To this action the defendant may 
plead the ftatute of limitations ; and by the exprefs pro¬ 
vision of the ftatute of queen Anne, all adtions on pro- 
miftory notes mud be brought within the fame time as is 
limited by the ftatute of James, with refpect to actions on 
the cafe. And it is no good replication to this plea, that 
it was on account between merchants, where it appears to 
be for value received. Comb. 190, 392. 
As the adtion on a bill of exchange is founded on the 
cuftom of merchants, fo that on a promifl'ory note is found¬ 
ed c i the ftatute 3 and 4 Anne, c.9; and ufually, though 
perhaps not neceftaiily, refers to it. In both cafes how¬ 
ever it is necelTary, that all thofe circumftances fhould ei¬ 
ther be exprefsly ftated, or clearly and inevitably implied, 
which, according to the characters of the parties to the 
ablion, mu-ft neceftarily concur in order to intitle the plain¬ 
tiff to recover. In (fating the bill or the note, regard muff 
be had to the legal operation of each refpedtively. 1 Burr. 
324, 5. It has been decided that the legal operation of a 
bill, or of a note, payable to a fictitious payee, is, that it 
is payable to the bearer, and therefore it is proper in the 
ftatement of fuch a bill, to allege that the drawer there¬ 
by requefted the drawee to pay fo much money to the bear¬ 
er ; in the ftatement of fuch a note, that the maker thereby 
promifed to pay fuch a fum to the bearer. Vere v. Lewis, 
3 Term Rep. 183. Minet et al. v. Gibfon et al. 7<7. 485. Con¬ 
firmed in Dorn. Proc. Or in fuch a cafe, the plaintiff' may 
(fate all the fpecial circumftances, and, if the verdidt cor- 
refpbnd with them, he will, be intitled to recover. See 1 
H. Black . Rep. 569. 
A bill or note payable to the order of a man, may, in 
an adfion by him, be ftated as payable to himfelf, for that 
is its legal import : or it may be ftated in the very words 
of it, with an averment that he made no order. If a note 
purport to be given by two, and be ligned only by one, a 
declaration generally, as on a note by that one who ligned 
it, will be good ; for the legal operation of fuch a note is, 
that he who (igned promifed to pay. Semb. 1 Burr. 323. 
On a note to pay jointly and feverally, a declaration againft 
one in the terms of the note will be good. Burchell v. 
Slocock, 2 Ld. Raym. 1545. So on a note to pay jointly or 
feverally, Cowp. 832; contrary'to former determinations. 
Inland bills and notes may be ftated to have been made at 
any place where the plaintiff chules to lay his action, be¬ 
caufe the adtion on them is tranfitory, and may be ftated 
to have arifen any where. In an aCtion againft the accep¬ 
tor, it mull be alleged that he accepted the bill, for the 
acceptance is the foundation of the action, but the manner 
of acceptance needs not to be alleged, j Ld. Raym. 364,5. 
374, 5. 1 Salk. 127,9. Carth.ysg. 
If the bill or note was payable to order, and the action 
by an indorfee, fuch indoriements mult be ftated as to (hew, 
his title; an -indorfement by the payee nnift at all events 
be 
