36 BILL of EXCHANGE. 
be dated, becaufe without that it cannot appear th at he 
made any order, on the exilic nee of which depends the 
title of the indorfee. If the fird indorsement was Special, 
to any perfon by name, in an addon by an indorfee after 
him, his indorfement muff, for the fame reafon, be dated : 
lb alfo mud all Special indorsements. But if the indorse¬ 
ment was in blank, and the action be againlt the drawer, 
acceptor, or payee, no other indorsement is necelfary to be 
dated than that of the payee ; in an aftion againlt a Subse¬ 
quent indorfor, his indorfement at lead mud be added : 
in an adtipn on a bill or note payable to the bearer, no in¬ 
dorsement need be dated, becaufe it is transferable without 
indorfement. 
In an aftion againd the drawer or indorfor of a bill, or 
againd the indorfor of a note, it is abfolutely necelfary, on 
account of non-payment of the bill or note, to date a de¬ 
mand of payment from the acceptor of the bill, or the 
maker of the note, and due notice of refufal given to the 
party againd whom the aftion is brought; for thefe cir- 
cumdances are abfolutely necelfary to intitle the plaintiff 
to maintain his action ; and a verdift will not help him on 
a writ of error. The general rule of pleading in this 
cafe is, that where the plaintiff omits altogether to date 
his title or caufe of aCtion,.it is not necelfary to prove it at 
the trial; and therefore there is no room for prefumption 
that there was aCtual proof. Ruditon v. Afpinall, Doug. 
679, (684:) but if the title be only imperfectly dated, 
w ith the omiffion only of fome circumdances necedary to 
complete the title, they (hall, after a verdift, be prefumed 
to have been proved ; and in fome cafes no advantage can 
be taken of the w'ant of them on a general demurrer. 
Doug. 684. 
Mod part of what might be Said as to the proof and de¬ 
fence in actions on bills or notes, necelfarily arifes out of 
the general doCtrine already explained. The plaintiff mud 
in all cafes prove fo much of what is necelfary to intitle 
him to his action, and of what mud be dated in his decla¬ 
ration, as is not, from the nature of the thing and the Si¬ 
tuation of the parties, necelfarily admitted. In an aCIion 
againd the acceptor, it is a genera! rule that the drawer’s 
hand is admitted ; becaule the acceptor is fuppofed to be 
acquainted with the writing of his correfpondent; and by 
his acceptance^ he holds out to every one who fiiall after¬ 
wards be the holder, that the bill is truly-drawn. 1 Ld 
Raym.4.44. Sfr. 946. 3 Burr. 1354- 1 Bl. 390. In an ac¬ 
tion againlt the acceptor therefore, where the acceptance 
was in view of the bill, whether in writing on the bill, or 
by parol, it is not necelfary to prove the hand-writing of 
the drawer. That of the acceptor himfelf mud of courle 
be proved; and that of every perfon through whom the 
plaintiff, from the nature of the tranlaftion, mud necclfa- 
rily derive his title. 
Oiia bill payableto the bearer, there is no perfonthrough 
whom the holder derives his title in an aCIion againd 
the acceptor therefore, on ftich a bill, he has only to prove 
the hand-writing of the acceptor himfelf. But in an ac¬ 
tion againd tire acceptor of a bill payable to order, the 
plaintiff mud prove the hand-writing of the very payee 
who mud be the fird indorfor. See 4 TermRep. 28. If the 
indorfement of the payee be general, the proof of his hand¬ 
writing is fufficient; if fpecial, that of his indorfee mud 
be proved ; but otherwife that of any other of the iqdor- 
lors is not requilite, though all the fubfequent indorfe- 
vnents be dated in the declaration. Any fubfequent holder 
may declare as the indorfee of the fird indorfor; but in 
this cale, in order to render the evidence correfpondent to 
the declaration, all the fubfequent names mull be druck 
out, either at or before the trial. But the plaintiff in the 
cale ot a transfer by delivery may be called upon to prove 
that he gave a good confideration for the bill or'note, with¬ 
out the knowledge of its having been dolen, or of any of 
the names of the blank indorfors having bteen forged. 1 
Burr. 542. Doug. 633, Peacock v. Rhodes. And, though 
the acceptance be lublequent to the indorfements, yet the 
neceffity ot proving the payee’s hand-writing is not by 
i 
this means fuperfeded. Say. #133. 1Terp1. Rrp.6i4.. In art 
adtion by an indorfee againd the drawer, the fame rules 
obtain with rel'pedf to proof of the hand-writing of the 
indorfors as in an action againd the acceptors. See Collis 
v. Emett, 1 H. Black. Rep. 313. That of the drawer him- 
felf mud of courle be proved. It mud alfo be proved 
that the plaintiff has ufed due diligence. 
From the rule, that in an attion againd the drawer or 
acceptor of a bill payable to Order, there mud be proof of 
the lignature of the payee, fird indorfor, and of alt thole 
to whom an indorfement has been fpecially made, arole 
the queltion which long, and greatly, agitated the com¬ 
mercial world, on the fubjeft of indorfements in the name 
o i fidilious payees. A bill payable to the order of a ficti¬ 
tious perfon, and indorfed in a fictitious name, is not a no¬ 
velty among merchants and traders. See Stone 9. Freeland, 
B. R. Sitting's after Falter 1769, alluded to in 3 TermRep. 
176. But in the years 1786, 7, and 8, two or three houfes 
connected together in trade, entering into engagements far 
beyond their capital, and apprehending that the credit of 
their own names would not be fufiicient to procure curren¬ 
cy to their bills, adopted, in a very extenfive degree, a 
practice which before had been found convenient on a 
fmaller feale. So long as the acceptors or drawers could 
either procure money to pay thefe bills, or had credit 
enough with the holder to have them renewed, the fub- 
jeCt of thefe fictitious indorfements never came in queftion. 
But, when the parties could no longer fupport their cre¬ 
dit, and a commiffion of bankrupt became nCceffary, the 
other creditors felt it their interefl to refill the claims of 
the holders of thefe bills; and infilled that they lliould 
not be admitted to prove their debts, becaufe they could 
not comply with the general rule of law requiring proof 
of the hand-writing of the firlt indorfor. The queftion 
came before the chancellor by petition. He directed tri¬ 
als at law, and feveral were had; three againlt the ac¬ 
ceptor in the King’s Bench, and one againlt the drawer 
in the Common Pleas, though not all exprefsly by that 
direction. See Tatlocku. Harris, 3 Term Rep. 174. Verc v. 
Lewis, 3 TermRep. 1S3. Minet et al. v. Gibfon et al. 3 
Term Rep. 483. Collis v. Emett, 1 H. Black. Rep. 313. 
From the decilions on thefe cafes, the principal of which 
was affirmed in the houfe of lords, and which have fettled 
that fuel) bills are to be conlidered as payable to bear¬ 
er, it follows, that proof of'the acceptor’s hand only is 
fufficient to entitle the holder to recover on the bill ; and 
in the cafe of Tatlock v. Harris, where a bill was drawn 
by the defendant and others on the defendant, it was de¬ 
termined that a bond fide holder fora valuable conft deration, 
might recover the amount again!! the acceptor in an action 
for money paid, or money had and received. 
The principal cafe above alluded to, as affirmed in the 
houfe of lords, is that of Minet et al. v. Gibfon et al. al¬ 
ready fo often mentioned/ It is better known by the name 
of Gibfon and Johnfon v. Minet and FeCtor ; and the opi¬ 
nions of tire judges in the houfe of lords a're very fully, 
and accurately reported in 1 H. Black. Rep. 569. The ef¬ 
fect of the determination, as there dated, is as follows. 
If a bill of exchange be drawn in favour of a fictitious 
payee , with the knowledge, as well of the acceptor as the 
drawer; and the name of filch payee be indorfed on it by 
the drawer, with the knowledge of tire acceptor, which 
fictitious indorfement purports to be the drawer himfelf 
or his order ; and then the drawer indorfes the bill to arr 
innocent indorfee for a valuable confideration, and after¬ 
wards the bill is accepted; but it does not appear that 
there was intent to defraud any particular perfon; fuck . 
innocent indorfee fora Valuable confideration may recover 
againd the acceptor, as on a bill payable to bearer. Per¬ 
haps alfo, in fuch cafe, the innocent indorfee might re¬ 
cover againd the acceptor, as on a bill payable to the or¬ 
der of the drawee ; or on a count dating the fpecial cir¬ 
cumdances. Other cafes, Mader et al. v. Gibfon et al. 
and Hunter v. Gibfon et al. were afterwards brought be¬ 
fore the houfe of lords (June 1793) on the demurrers to 
evidence j 
