301 CHAPTER X. OF THE DECLARATION IN SPECIAL ASSUMPSIT, ON AND HEREIN, OF THE STATEMENT OF MAKING, AND ACCEPTING IT par- general. T has been already observed, that the declaration in Form of declaring on assumpsit is special, in all cases where the plaintiff bills, &c. in declares upon the original contract, setting out the ticular language or effect of it, whatever may be the subject matter. It is therefore special in actions upon a bill of exchange, promissory note, policy of insurance, or the like, where the language or effect of the instrument is set forth in the declaration". The form of declaring on these instruments requires a separate consideration. The reason is, that contracts in general are subject to several divisions and distinctions, being different, both with regard to the operation of them, and the mode in which they are made, as well as the consideration, and condition of their performance, which are different in different cases, and must be truly stated. The form of declaring upon them is therefore necessarily different, in different cases. But bills of exchange, &c. a Ante 1. b Ante 29. c Ante 76. a Ante 49. • Ante 114. have have one uniform operation, and are almost universally made in the same mode; nor is the consideration of them necessary to be stated, because they imply a consideration of themselves. The form of declaring upon these instruments therefore is peculiar, and for the most part, the same in all cases which arise upon them. Having already considered the declaration in special assumpsit on contracts in general, it will next be proper to consider the form of declaring by way of special assumpsit, on these instruments. This is the usual form, and in general the only proper one of declaring upon them, setting out the instrument itself, in the language or according to the effect of it; although the plaintiff may, in some particular cases which will be hereafter noticed, declare in general or indebitatus assumpsit upon such instruments, without setting out the language or effect of them, alledging only the debt of which the instrument is evidence, as being due upon and by virtue of it. Actions on bills of exchange and promissory notes, &c. are now so very frequent, that they constitute a very considerable part of the business of Westminster Hall; and as they so very frequently occur in practice, it is peculiarly necessary for pleaders to be intimately acquainted with the numerous cases which have arisen upon the form of declaring on them. It will therefore be proper to enter into a full and minute investigation of those cases. In treating of the form of declaring on these instruments, it is intended to consider the different allegations in such declarations, in the order in which they occur in the precedents, noticing, first, those authorities which relate to the statement of the fact of drawing or making the instrument; secondly, such as apply to the statement f Ante 49. of of the tenor and effect of it; thirdly, those applicable to the form of alledging the acceptance of a bill of exchange; fourthly, those relating to the allegation of the transfer of a bill, check, or note, or that no transfer was made; fifthly, those which relate to the averments of presentment of a bill, &c. for acceptance or payment, and the protest and return of them for non-acceptance or non-payment, and the allegation of notice; and sixthly and lastly, the statement of the liability and promise to pay after which, it will be proper to make a few observations on other parts of declarations on bills, &c. as, the averments of the value of foreign money, the length of usances, the default in payment of one of several instalments of a note, or the non-payment of the several parts of a bill besides that on which the plaintiff declares, where the bill is drawn in parts; the common counts; and the assignment of the breach proper in these cases. The form of declaring on bills and notes will be considered together, as the rules applicable to a declaration on each are very similar. And the peculiar form of declaring on bankers checks will be noticed in considering that of declarations on bills of exchange, of which they may be considered as a particular species. strument, dered. With respect to the form of stating the drawing or Allegation of making of a bill, &c. in declarations in special as- making insumpsit on either of those instruments, it will be pro- how consiper to consider, first, the necessity of stating the parties to have been traders; secondly, the necessity of alledging the custom or practice of merchants, in declaring on bills of exchange or bankers checks; thirdly, the statement by whom, when, and where the instruments Allegation that parties were merchants. Distinction, between instruments declared on were drawn; fourthly, the statement of the description, signature or subscription, and date of them; fifthly, the statement of the direction; and lastly, the allegation of the description of the drawee or payee, and the delivery of the bill, &c. to the party in whose favor they are drawn. Each of these will be separately considered, previous to treating of the statement of the purport or effect of the instrument. It was formerly usual, in declaring on a bill of exchange, to state that the plaintiff, defendant, and the other parties to it, were respectively persons trading and using commerce, at the time of becoming parties to the instrument; and this form is yet sometimes used. But it is most clearly unnecessary, and it is universally omitted in the best precedents. A man does not make himself a merchant by the drawing or accepting of a bill exchange; nor is it necessary that every party to such an instrument should be a merchant or trader, and if it were, the court would intend him such for that purpose3. It is therefore better to omit any allegation of the above nature; the introduction of which might possibly incumber the proof. Formerly also it was usual, in declaring on bills of pleading, and exchange, to set forth the custom of merchants respectdeclaring on ing bills; but in 4 Jac. 2. it was determined on a writ of error, that the judges ought to take notice of the custom of merchants, because it is part of the law of custom. the 8 II. B. 313. h Frederick t. Cotton, 2 Sho. 8. J1 Sho. 127. 2. Sho. 8. S. P. Doug. 312. the land, and especially the custom concerning bills of exchange, that being the most general of such customs; therefore it was sufficient for the defendant to plead, that according to the usage and custom of merchants, he indorsed a bill to the plaintiff. But it was said, that it might probably be otherwise in a declaration on a bill, in which the plaintiff ought to set forth the custom'. custom of good. Accordingly, the practice of setting forth the cus- Declaration tom, in declarations on bills, appears to have conti- on general nued; for in 5 IV. & M. it was insisted on as error, England, that the plaintiff in an action on a bill, had not declared upon the custom of merchants, in London or any particular place, but on a general custom throughout England; though it was answered, that as the judges would take notice of the custom, it was needless to set it out specially in the declaration, it being sufficient to say, that such a person, according to the usage and custom of merchants, drew the bill; therefore all the matter in the declaration concerning the special custom was merely surplusage: and the judgment was affirmed".. Certainly, it is not a particular local custom, but a general custom, of which the law takes notice". In a subsequent case, where it was objected to a declaration, on general demurrer, that it stated the custom to be a custom of England, instead of the custom of merchants, the court disallowed the objection; observing, that although heretofore it had been admitted, yet it had been since frequently * Carter v. Dowrich, 3 Mod. 227. And see 1 Ld. Raym. 88. 4 Carth. 83. S. C. Williams v. Williams, Carth. 269, 70. 1 Ld Raym. 360. |