Sect. 3. Of though the dividend had been paid by the assignees of the bankrupt the plees & partner within six years. defence. With respect to the mode of taking advantage of these defences, those which in effect deny that the bill, &c. was made, or that the defendant or plaintiff was party to it, such as those which are founded on some defect in the instrument, apparent on the face of it, or on the ground that the supposed drawing, acceptance, or indorsement, do not amount to such act, cannot be pleaded, and can only be taken [375] advantage of, under the general issue of non-assumpsit to which they amount. But all defences which admit the existence of a contract but allege that it was never binding, or that if it were, it was either performed, or discharged before breach, may be pleaded specially ; though in general, matters which deny that the plaintiff ever had cause of action, are not pleaded, but are given in evidence under the general issue of non-assumpsit, which puts the plaintiff on proof of his right of action: where, however, such defences lie more in the knowledge of the defendant than the plaintiff, as in the case of infancy and coverture, it is considered fairer practice, to plead them in the first instance, or give notice of them to the plaintiff, previously to the trial of the cause, as otherwise the plaintiff may be surprised by them at the trial. Defences of the second description, which admit that the plaintiff once had right of action, are usually pleaded; and a tender, set-off, bankruptcy, or insolvency of the defendant, and the statute of limitations, must in all cases be pleaded." 463. a Brandram v. Wharton, 1 Barn, & Ald. Hatton v. Morse, 1 Salk. 394. Hussey v. Jacob, 1 Ld. Raym. 88, 9. Com. Digtit. Pleader, E. 14. Draper v. Glassop, I Ld. Raym. 153. CHAPTER IV. OF THE EVIDENCE IN AN ACTON ON A BILL, NOTE, &c. THE evidence to be adduced in an action on a bill or note, &c. is to be considered with reference, first, to the plaintiff's cause of action and secondly, the defendant's answer to the action. The evidence which the plaintiff should adduce in support of his declaration, in which the bill, &c. is set forth, may be considered with reference, first, to the facts, which must be proved; and secondly, to the manner of proving those facts. With respect to the facts which must be proved, the evidence is What facts in all cases governed by the pleadings, it being necessary to prove the plaintiff every thing put in issue, and no more. When the general issue of must prøve. non-assumpsit is pleaded, the plaintiff must prove every material allegation in his declaration, the requisites of which have been already stated; but on an issue taken on a special plea, replication, or rejoinder, if there be no plea of non-assumpsit, it is only necessary to prove the particular point referred to the jury, for whatever is not expressly denied, is admitted by the pleading; and on the same principle, where the issue lies only on the defendant, as where it is joined on the plea of infancy, and there is no other plea, it is not incumbent on the plaintiff to adduce any evidence in support of his declaration. Under the general issue, the plaintiff must prove, 1st. That the bill or note, declared on, was made as stated in the declaration, either in words, or that its legal operation was as therein described. 2dly. That the defendant became party to the bill as alleged in the pleadings. 3dly. The plaintiff's interest in the bill, as indorsee, bearer, &c. and sometimes the consideraion which he gave for it. 4thly. The special averments, and the breach of the defendant's con-[377] tract. We will consider each of these heads in their natural order, and the mode of proof to be adduced in support of them. 1st. The bill or note and the allegations respecting it must be proved 1st. Proof as described in the declaration, in terms, or in substance, whoever may of the bill be the defendant, and any material variance will be fatal. If there as describ * Ante, 352. ed as describ 1st. Proof were any mistake in the date, or circumstances of the instrument neof the bill, cessary to be explained, then evidence must be adduced accordingly. ed. And in action by the indorsee against the acceptor of a bill, the date of which appears to have been altered by the acceptor, it lies on the plaintiff to show that the alteration was made previous to the indorsement by the drawer, to whose order it was made payable. And if the plaintiff sue on a promissory note which purports to be payable, to a person of a different name, he should be prepared with evidence, that he was the person intended, In an action against the acceptor or indorser of a bill, or the indorser of a note, the hand-writing of the drawer of the bill and the maker of the note, are considered as admitted and need not be proved, nor can it be contradicted by the defendant, and the circumstance of its having been forged, constitutes no defence, unless it appear that the bill was accepted before the drawer had sight of the bill, in which case it is said, that the drawer's hand-writing must be proved. In an action against the drawer or indorser of a bill for default of payment, it is unnecessary to allege that it was accepted, but if it be stated, it must be proved ; though proof of an express promise of [378 payment by the drawer after the bill was due, precludes the necessity of proving such acceptance, h If the bill were in foreign money, it should be proved what was the Johnson r. Duke of Marlborough, 2 . Willis v. Barrett, 2 Stark. 29. Ante, d Wilkinson v. Lutwedge, 1 Stra. 648. Jenys v. Fowler, 2 Stra. 946. Price v. Neale, Burr. 1351. 1 Bla. Rep. 390. Per Dampier, J. in Bass v. Clive, 4 M. & S. 15. Ante, 185. Bayl. 217. Free and others v. Hawkins, Holt C. N. P. 550. In an action against the payee of a promissory note, who was likewise the indorser, held, that his indorsement was an admission of the hand-writing of the maker. Action by indorsee against the payee of a promissory note, of which Sir Robert Salisbury was the maker, and the defendant became the payee and indorser as surety for Sir R. S. to the plaintiffs. The only evidence on the making of the note by Sir R. S. was by proving the indorsement of the note by the defendant, which was objected to by Mr. Serjt. Lens. But Gibbs, C. J. ruled, from the analogy of a bill of exchange, where the acceptance is an admission of the hand-writing of the drawer, that the indorsement by the payee is an admission of the hand-writing of the maker. Id. Ibid. Bayl. 219. Peake Evid. 4th edit. 248. sed quære. 8 Jones v. Morgan and another, 2 Campb. 474. Bayl. 181. 219, 220. Wayman v. Bend, 1 Campb. 174. Jones v. Morgan and another, 2 Campb. 474. This was an action on a bill of exchange drawn by the defendants, payable to their own order, and indorsed by them to the plaintiff. The bill was drawn upon one T. Burt, by whom it was dishonoured for non-payment, and the declaration unnecessarily stated that he had accepted it according to the usage and custom of merchants. No evidence could be adduced of his hand-writing, but it appeared that after the bill was due, one of the defendants se: veral times promised the plaintiff to pay it. The plaintiff's counsel contended there was no necessity to prove the acceptance, as it had been stated unnecessarily, the liability of the defendants, at all events attaching, upon the non-payment of the bill, and at any rate, that the acceptance was admitted by the promises to pay after the bill was due, and in the plaintiff's hands. Lord Ellenborough was clearly of opinion that the acceptance being stated in the declaration must be proved, and he was inclined to think at the trial, that the promises to pay did not amount to an admission of an acceptance, he therefore directed a nonsuit. But upon a motion in the ensuing term, to set the nonsuit aside, his Lordship and the rest of the court, thought, upon authority of Lundie e Robertson, 7 East, 231, that the promises to pay were a sufficient admission of the acceptance, and upon the same evidence at the Sittings after Michaelmas Term last, the plaintiff had a verdict. See also Bosanquet v. Anderson, 6 Esp. Rep. 43. Post. rate of exchange, and value of such money at the time the bill became 1st. Proof due; and if the bill were payable at usances, the duration of such of the bill, usances should be proved, as describ ed. Mode of With respect to the MODE of proving the bill, and the allegation respecting it, on the rule that the plaintiff must adduce in support of his proving bill action the best evidence in his power, he must in general produce the instrument declared on, in proof of the allegations that it was made, and proof of the mere loss of the bill will not in general excuse the non-production of it. Where, however, it can be proved, that the original bill has been destroyed, or that it is withheld by the defendant,' it will suffice to produce a copy, or to give parol evidence of its contents, and where the defendant tore his own note of hand, a copy was admitted as good evidence."(485) But in these cases, the plaintiff must show sufficient probability to satisfy the court, that the original note was genuine." And it has been decided, that when the original note is in the hands of the defendant, the plaintiff must give him notice to produce it, or he will not be allowed to go into evidence of its loss or contents; and this rule has ever been considered as ap-[ 379 ] plying to an action of trover, for a bill of exchange in the possession of the defendant; but it is now established, that in such action of trover, or in any other proceeding, as on an indictment for stealing a bill, or for forging a note which the defendant swallowed, which necessarily imports that the plaintiff means to charge the defendant with the possession of the instrument, no notice to produce need be served upon him. Where a notice has been given in order to let in the secondary evidence, the service of such notice, and the destruction or detention by the defendant of the instrument must be proved. If there was a subscribing witness to the bill or note, or to an indorsement thereof, then in an action against the drawer of the bill or the maker of the note, it will be necessary to subpoena such witness, and if there be any doubt as to his proving that he saw the defendant write his name, the subscription must be proved by some other evidence, which will in that case be admissible; and if a person sees a de Ante, 152, 3, 4. * Ante, 155. Ante, 152. m Per Holt, C. J. Anon. Lord Raym. 731. Gaodier v. Lake, 1 Atk. 446. Phil. on Evid. 3d edit. 389. Phil. on Evid, 3d edit. 390. Lemon v. Dean, Lancaster Lent Assizes, 1810, cor. Le Blanc, J. 2 Campb. 636. Action on a promissory note, which appeared to be witnessed by one Bentley. Bentley was called, and swore that he did not see the defendant subscribe the note, but the defendant merely desired him to try to write his name upon the paper, and that he did not observe whe- (485) Secondary evidence of the contents of a note, is admissible where it appears the original is destroyed or lost. Benner v. Bank of Columbia, 8 Wheat. 596. 1st. Proof fendant sign a promissory note, but is not desired by the parties to of the bill, attest it, he cannot, by afterwards putting his name to it, prove it as ar attesting witness.t as describ ed. If the subscribing witness be dead, proof of his hand-writing, and that the defendant was present when the note was prepared, is sufficient, without proving the hand-writing of the defendant. And in an action on a promissory note, to which there was a subscribing witness, who had since become insane, it was held, that proof of his handwriting was sufficient to prove the making of the note. But it seems most prudent, in these cases, to be prepared with proof of the hand[380] writing of the maker, and of the witness, in order to establish the identity of the maker; and in the first-mentioned case, where the witness was dead, it was doubted whether the mere proof of his handwriting, without the evidence of the defendant's having been present when it was prepared, would have sufficed. It has recently been determined, that where issue is founded on a plea of non est factum, in an action on a bond, some evidence must be given of the identity of the party executing the deed, which is not to be assumed from its having been executed by a person in his name, in the presence of the attesting witness, who was unacquainted with him. The payment of money into court generally precludes the defendant from disputing the validity of the bill, or showing that it is improperly stamped. In such case the plaintiff should, on the trial, produce the rule, and it will not suffice to call the attorney to prove that he took the money out of court." 2dly. Proof Secondly, It must be proved, that the defendant was a party to the that defen- bill or note. Thus in an action against the acceptor of a bill, it must dant was be proved, that the defendant accepted the bill either verbally or in party to the bill, &c. writing and if the acceptance was made by an agent, it must be shown that he was legally authorized by the principal and in general the agent himself should be subpoenaed; but it is not in all cases necessary to subpoena the agent himself: thus in an action on a policy of insurance, the affidavit of a person, stating that he subscribed the policy on the behalf of the defendant, which affidavit the defendant himself had previously used on a motion to put off the trial, was, under the particular circumstances, admitted as proof of the agency; for the defendant having used the affidavit for such a purpose, must be considered as having known and adopted its contents, though the single circumstance that the affidavit purported to have been made by a person of the person so executing it; but the 2 Per Dampier, J. in Middleton e Sandford, 4 Campb. 34. a Israel 7. Benjamin, 3 Campb. 40. b Id ibid. Ante, 170 to 182. d Johnson v. Mason, 1 Esp. Rep. 90. |