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bill, as described.

1st. Proof of the that case be admissable; and if a person who sees a defendant sign a promissory note, but is not desired by the parties to attest it, he cannot by afterwards putting his name to it, prove it as an attesting wit

ness 2.

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 hand-writing 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-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 hand-writing, without the evidence of the defendant's having been present when it was prepared, would have sufficed. It has recently been determined, that where

'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 whether any thing was at that time written on it. Plaintiff's counsel then proposed to call witnesses to prove the defendant's hand-writing.-Williams objected, that there being a subscribing witness to the note, who was not incompetent, no other evidence of it could be given. He cited Phipps v. Parker, 1 Campb. 412.-Le Blanc, J. "I will make no observation upon that case. It may be distinguishable, as there the instrument was a deed. But I am quite clear, that if the subscribing witness to a note when called cannot prove it, by reason of his not having seen it drawn, the plaintiff may proceed to prove by other means." Vide Fasset v. Brown, Peake Rep. 23.-Grellier v. Neale, Ib. 146.

2 M Craw v. Gentry, 3 Campb. 232.

3 Nelson v. Whittall, 1 Selw. & Barn. 19.

Per Ld. Ellenborough, Currie v. Child, 3 Campb. 283. cited in Nelson v. Whittall, 1 Selw. & Barn. 22. n. a. and see Gough v. Cecil, Selw. 4th edit. 516. n.

Per Bayley, J. in Nelson v. Whittall, 1 Selw. & Barn. 21. "It is laid down, in Mr. Phillip's Treatise on the Law of Evidence, that the proof of the hand-writing of the attesting witness is, in all cases, sufficient. I always felt this difficulty, that that proof alone does not connect the defendant with the note. If the attesting witness

issue is founded on a plea of non est factum, in an ac- 1st. Proof of the bill, as describei. tion 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 shewing 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 court3.

defendant was

&c.

Secondly, It must be proved that the defendant was 2dly. Proof that a party to the bill or note. Thus in an action against party to the bill, the acceptor of a bill, it must be proved, that the defendant accepted the bill either verbally or in writ ing; and if the acceptance was made by an agent, it must be shewn that he was legally authorised by the principals; 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

himself gave evidence, he would prove, not merely that the instru ment was executed, but the identity of the person so executing it; but the proof of the hand-writing of the attesting witness establishes merely, that some person assuming the name, which the instrument purports to bear, executed it, and it does not go to establish the identity of that person; and in that respect the proof seems to me defective. In this case, however, there is evidence sufficient to connect the defendant with the note, for he was present in the room when it was prepared.

1 Per Dampier, J. in Middleton v. Sandford, 4 Campb. 34. 2 Israel v. Benjamin, 3 Campb. 40.

3 Id. ibid.

having known and adopted its contents, though the single circumstance that the affidavit purported to have been made by a person as agent, would not have been a sufficient proof of his being invested with that authority; and when it has been proved that A. is agent of B., whatever A. does or says, or writes, in the making of a contract, as agent of B., is admissible in evidence, because it is part of the contract which he makes for B., and which therefore binds him, but it is not admissable as the agent's account of what passes*.

In an action against several acceptors of a bill, or makers of a note, the hand-writing of each must be proved; or it must be shewn that a partnership existed at the date of the instrument, and that the partnership name was written by one of the partners or

Johnson v. Ward, 6 Esp. Rep. 48.-Phil. Evid. 3d ed. 79.

Per Gibbs, J. in Langhorn v. Allnutt, 4 Taunt. 519.-Phil. Evid. 3d ed. 78.

3 Gray. Palmers and another, 1 Esp. Rep. 135.-Per Lawrence, J. in Sheriff v. Wilks, 1 East. 52.

Gray and others v. Palmers and Hodgson, 1 Esp. Rep. 135. Assumpsit by the plaintiffs as indorsees of a promissory note against the defendants as the drawers. The note was a joint and several one signed by James and John Palmer, and Edward Hodgson. The declaration was against them jointly in the common form, viz. that the said James and John Palmer, and Edward Hodgson, made their cer tain note in writing, commonly called a promissory note, their proper hands-writing being thereto subscribed, &c. &c. &c. Hodgson, one of the defendants, had pleaded a sham plea of judgment recovered, to which there was the usual replication of nul tiel record, and demurrer, in which state the pleadings then stood as to him; the two other defendants James and John Palmer severally pleaded non assumpsit, and these were the issues in the cause on the record. The counsel for the plaintiff proved the hands-writing of James and John Palmer, and there rested their case. The counsel for the defendants insisted that this alone was not sufficient; for that it was also necessary to prove the hand-writing of Hodgson, the other defendant, in as much as the plaintiffs had declared on a joint contract against the three defendants. It was answered, that Hodg son had by his plea admitted the note to be his; and it was therefore only necessary to prove it against those parties who had by their pleas denied it to be theirs, and that being proved as to them, gave the plaintiff sufficient title to recover. Lord Kenyon ruled, that it was necessary to prove the hands-writing of all the parties to the note; his lordship said, that between the plaintiffs and Hodgson it was unnecessary to prove his hand-writing, he having by his plea of judg ment recovered not denied it; but that the other defendants had a right to have the declaration proved, which could only be by proving the hands-writing of all the defendants subscribed to the note, as the plaintiffs had averred in the declaration they had done.

defendant was

&c.

their agent. If the partnership be established, then 2dly. Proof that it will suffice to prove an admission by one of the party to the bill, defendants of the hand-writing of one of the partners to the acceptance, in the name of the firm'; and it will not be necessary to prove that the defendants were of the christian names stated in the declaration3. And this doctrine has been carried so far, that in an action against three persons as drawers of a bill of exchange, purporting to have been drawn by an agent of the firm upon one of the partners, it was held, that the acceptance by the drawee was evidence against the three partners of the bill, having regularly drawn and rendered it unnecessary to prove the authority of the agent. So the admission by one partner of his partnership with the co-defendants, who were sued with him, as acceptors of a bill of exchange, and who had been outlawed, has been received as proof against him of a joint promise by alls. The

I Thwaites v. Richardson, Peake. Rep. 16.

Id. ibid.-Phil. Evid. 3d ed. 75.-Hodenpyl . Vingerhoed and another:

Hodenpylv. Vingerhoed and another, cor. Abbot, J. 3d July, 1818, Guildhall. Assumpsit on a promissory note, dated at Rotterdam, and drawn in Dutch, and for the payment of 900 guilders to the plaintiff, and subscribed by the firm of "Vingerhoed and Christian.” The declaration stated several christian names of each defendant. A witness swore that he knew the firm of Vingerhoed and Christian, and that there were two persons of those surnames in the firm, but that he did not know their christian names; and that in a conversation with Vingerhoed, he admitted that the note was subscribed by him in the name of the firm. This was held sufficient to establish the action against both defendants. Blunt and Bowman for plaintiffs, but see post, 506, n. 1.

3 Id. ibid.

4

* Porthouse v. Parker and others, 1 Campb. 82.

Porthouse v. Parker and others, 1 Campb. 82. This was an action by payce against the drawers of a bill, which purported to be drawn by one Wood, as the agent of George, James, and John Parker, upon John Parker. There was no proof that Wood had authority from the defendants to draw the bill, but a witness swore that he, as the agent of John Parker, the drawee, and one of the defendants, had accepted it on his account. Lord Ellenborough held, that the bill having been accepted by order of one of the defendant's, this was sufficient evidence of its having been regularly drawn; and further, that the acceptor being likewise a drawer, there would be no occasion for the plaintiff to prove that the defendants had received express notice of the dishonour of the bill, as this must have necessarily been known to one of them, and the knowledge of one was the knowledge of all. Per Lord Ellenborough in Sangster. Mazarredo and others, 1 Stark. 161. Phil. Evid. 3d cd. 161.

rule has even been extended in actions so far as to admit the declarations of one partner to be evidence against another, concerning joint contracts and their joint interest, although the person who has made such declarations is not a party to the suit; as where in au action by a creditor against some of the partnership firm, the answer of another partner to a bill filed by other creditors was received in evidence against the defendants, not indeed to prove the partnership, but that being established, as an admission against those who are as one person with him in interest'. And the admission of a partner, though not a party to the suit, is evidence as to joint contracts against any other partner, as well after the determination of the partnership as during its continuance'. So we have seen that the admission of one of several drawers of a promissory note is sufficient to take the case out of the Statute of Limitations, in a separate action against the others3. But in a joint action against three persons as acceptors of a bill of exchange, as a joint liability must be proved, the circumstance of two of the defendants having been outlawed will not dispense with proof of their joint liability, although the defendant who alone pleaded to the action was in justice liable to pay the debt. So in an action against two persons, as makers of a note, if one of them suffer judgment by default, his signature must nevertheless be proved on the trial against the others,

In an action against the acceptor of a bill, payable after sight, it is in general necessary to prove the date or time of the acceptance; but if his signature as acceptor is proved, the date of the acceptance appear、

'Grant P. Jackson, Peake, 203.-Wood v. Braddick, 1 Taunt. 104. Nicholl v. Dowding and Kemp, 1 Stark. 81.

2 Wood and others v. Braddick, 1 Taunt. 104.

3 Ante, 478, 9.

5

Sheriff. Wilkes and others, 1 East. 48.

Gray and others v. Palmer, 1 Esp. Rep. 135. ante, 488.