2. The said M. O. duly accepted the said bill.

3. Messrs. C. P. indorsed the same to the defendant.

4. The defendant indorsed the said bill to the plaintiff.

Foreign bills.

Indorsee

against

5. At maturity the said bill was duly presented for payment, indorser.

and was dishonoured.

6. The said bill was thereupon duly protested for non-pay

ment thereof.

7. Due notice of the dishonour of the said bill and of the

protest for non-payment was given to the defendant.

8. The defendant has not paid the same.

The plaintiff claims, &c.

PROMISSORY NOTES (a).

Payee against Maker for Default of Payment.

1. The defendant, on the 1st day of July, 1876, by his Promissory promissory note promised to pay to the plaintiff £100 two notes.

months after date.

Payee

against

2. The said note became due on the 4th of September, 1876, dealer. but the defendant has not paid the same.

(a) At common law a promissory note was not a negotiable instrument but only evidence of a debt; but by the statute 3 & 4 Anne, c. 9, promissory notes were made negotiable. By 7 Geo. 4, c. 6, s. 3, promissory notes for less than £5 payable to bearer on demand are prohibited. It has been made a question whether a note payable to the maker's order is a promissory note within the statute of Anne, and negotiable. (Flight v. Maclean, 16 M. & W. 51; Wood v. Mytton, 10 Q. B. 805.) It is, however, agreed that when such note is indorsed, it then becomes a note payable to bearer or to the indorsee, or his order, according as the indorsement is in blank or to a named person. (Hooper v. Williams, 2 Exch. 13; Absalom v. Marks, 11 Q. B. 19.) But a note payable to an uncertain payee is not a promissory note. (Cowie v. Stirling, 25 L. J. Q. B. 335.) For other decisions as to what will or will not constitute a promissory note, see Watson v. Evans, 32 L. J. Ex. 137; Holmes v. Jaques, L. R. 1 Q. B. 376; Miller v. Biddle, 14 W. R. 110.

Quære, is note payable to

maker's order

negotiable?

In an action against the maker of the note where the promise to pay No presentis general, no presentment to the maker need be proved (Exon v. Russell, ment need 6 M. & S. 505); but where the note contains in the body of it (and not be averred merely in a memorandum at the foot) a promise to pay at a particular as against place, a presentment at such place must be averred in the statement of maker claim (Sanderson v. Bowes, 14 East, 500; Spindler v. Grellett, 1 Ex. unless 384); and presentment at the place specified must be proved, though the payable maker may not be there to pay, and may have absconded and left no at a partieffects or means of payment there. (Sands v. Clarke, 8 C. B. 751.) In cular place. an action on a note payable on demand, a demand need not be averred, for the action itself is a demand. (Rumball v. Ball, 10 Mod. 38.) It used to be otherwise if the note were payable after sight; but now by the 34 & 35 Vict. c. 74, s. 2, bills and notes payable at or after sight are placed exactly on the same footing as bills or notes payable on demand.

Payable on demand,

no demand need be averred.

Promissory

notes.

Payee against maker.

Payee against

maker on

The plaintiff claims:

£100, and interest at the rate of 5 per cent. from the date of the note until judgment.

Payee against Maker on a Note payable by Instalments, where one only of the Instalments is due (a).

1. The defendant on the 1st day of January, 1876, by his promissory note promised to pay to the plaintiff the sum of £200 in manner following, namely, £100 on the 1st day of able by in February, 1876; £50 on the 1st day of March, 1876, and £50 on the 1st day of April, 1876, respectively.

note pay

stalments.

Defence.

Counterclaim.

2. On the 4th day of February, 1876, the first instalment of £100 fell due, but the defendant did not pay the same. The plaintiff claims, &c.

Defence and Counter-claim.

1. The defendant says that before he signed the promissory note mentioned in the first paragraph of the statement of claim, he had had a wager with the plaintiff upon the result of the races, and the defendant lost the said wager.

2. The defendant then, at the plaintiff's request, signed and gave him the said note in part payment of the amount of the aforesaid wager, and the same was the only consideration for

the said note.

And by way of set-off and counter-claim, the defendant says:

1. On the 4th day of January, 1876, the plaintiff drew on the defendant a bill of exchange for £200, payable on demand to the order of C. D.

2. The defendant, at the request and for the accommodation of the plaintiff, and without receiving any consideration for so doing, accepted the said bill.

3. The defendant was afterwards compelled to pay the

(1.) To be repaid the sum of £200 so paid by him.

(2.) Such further or other relief, &c.

(a) A note of this kind, one made payable by instalments, is within the statute of Anne and negotiable. (See Oridge v. Sherborne, 11 M. & W. 374; Carlon v. Kenealey, 12 M. & W. 139.)

Reply.

note.

Payee

1. The plaintiff denies the 1st and 2nd paragraphs of the Promissory defendant's statement of defence. He says that the said promissory note was not given as payment or part payment of against any bet or wager made between the plaintiff and the defendant maker on a on the result of the races, but was given by the defendant able by into the plaintiff in payment of money lent by the plaintiff to stalments. the defendant. Particulars of the money so lent have been

delivered to the defendant.

2. As to the defendant's counter-claim, the plaintiff does not admit that he drew the bill of exchange mentioned in the 3rd paragraph of the statement of claim upon the defendant.

3. The defendant did not accept the said bill, nor has he paid it.

4. If the defendant did accept and pay the said bill (which the plaintiff does not admit), he accepted the same of his own accord, and not at the request or for the accommodation of the plaintiff.

Rejoinder.

The defendant joins issue upon the plaintiff's reply.

Indorsee against Maker for Default of Payment.

note pay

1. The defendant, on the 10th day of October, 1877, by his Indorsee promissory note, promised to pay to Messrs. F., E. & Co. or order £300 two months after date.

2. The said Messrs. F., E. & Co. indorsed the said note to

the plaintiff.

3. The said note became due on the 14th day of December, 1877, but the defendant did not pay the same.

The plaintiff claims, &c.

Indorsee against Maker and Indorser for Default of

Payment (a).

1. The defendant A. B., on the

day of

against maker.

1876, by Indorsee

his promissory note, promised to pay to Messrs. W. & C. or against

order £100 one month after date.

maker and indorser.

(a) This mode of joining in the same action both indorser and maker, is authorized by the new practice. (See ante, p. 177.) In an action on

Promissory

note. Indorsee against maker and indorser.

Defence of

2. Messrs. W. & C. indorsed the said note to the defendant C. D.

3. The defendant C. D. indorsed the same to the plaintiff. 4. At maturity the said note was duly presented for payment, but was dishonoured.

5. Due notice of the dishonour of the same was given to the defendant C. D.

6. The said note still remains unpaid.

The plaintiff claims against the defendants A. B. and C. D. jointly, severally, or in the alternative, the sum of £100, and interest from the date of payment of the bill until judgment.

Statement of Defence of the Defendant A. B.

The defendant A. B. says that after the said promissory alteration. note was made as alleged in the 1st paragraph of the statement of defence, and after it was issued, it was materially altered without the consent of the defendant A. B. by the time for payment being altered from two months after date to one month after date.

Defence.

Statement of Defence of the Defendant C. D.

1. The defendant C. D. does not admit the allegations of the No presen- 2nd and 3rd paragraphs of the statement of claim.

tation for

payment.

No notice of dishonour.

Alteration.

2. He denies that the note was duly presented for payment. 3. The defendant C. D. further says that due notice of the dishonour of the said note was not given to him.

4. After the making of the said promissory note, and after it was issued, it was materially altered without the consent of the defendant C. D. by the time for payment being altered from two months after date to one month after date.

Payee against Maker of the Note for Default of Payment. [The plaintiff in this case has proceeded by specially indorsed writ under Order III. r. 6. The promissory note sued on appeared on the face of the writ. Then follows]

the note against an indorser, the plaintiff must allege and prove: 1st. the making of the note; 2nd, the indorsement of the defendant; 3rd, the presentment for payment at the place specified, if any is specified; 4th, the default in payment; and 5th, due notice of dishonour.

Notice in lieu of Statement of Claim.

1. The plaintiff claims principal and interest due on the promissory note indorsed on the writ.

2. The plaintiff proposes to try this action at M.

Statement of Defence.

Promissory note.

Payee against maker proceeding by specially indorsed

writ.

1. The defendant says that there never was any value or Defence. consideration for the making or delivering of the said note, and the plaintiff has always held the same without any value or consideration whatever.

2. Before and at the time of the making of the said note, the defendant was, as the plaintiff well knew, the managing director of the B. L. S. Co., Limited.

3. By an indenture of mortgage, bearing date the 29th day May, 1876, the plaintiff advanced to the said company the sum of £6500, subject to the covenants and provisions of the said indenture.

4. By the said indenture the plaintiff covenanted not to call in the said sum of £6500, or any part thereof, before the year 1879, provided the covenants and agreements therein contained were performed and observed.

5. The said covenants and agreements have been performed and observed.

6. The said promissory note was, as the plaintiff well knew, made and delivered by the defendant only as the agent for and on behalf of the said company and in respect of and as collateral security for the sum of £500, part of the said sum of £6500 then advanced as aforesaid.

7. It was agreed between the plaintiff and the defendant as such agent as aforesaid, that the said note should be held subject to the covenants and provisions of the said indenture, and that the defendant should not in any way be personally liable thereon.

Reply.

1. The plaintiff joins issue on the statement of defence, Reply. except so far as it admits the allegations in the statement of claim.

2. As to the indenture of mortgage mentioned in the 3rd