1 ought to be set forth accurately, that is, either in the terms in which it was made, or according to the legal effect and operation of those terms; for a variance in any material point, between the statement in the declaration and the note produced in evidence, will be fatal. As where in an action on a promissory note, made by the firm of Austin, Strobell, and Shirtlif, who were declared against by the name of William A., Robert S., and William S., and it was proved that the firm consisted of William A., Daniel S., and William S., it was holden that the variance was fatal. Where the maker of a promissory note makes a memorandum at the foot of it, that he will pay it at the house of A., as this does not form any part of the contract, it is not necessary to state it in the declaration; but if it forms a part of the body of the note, it must be stated, and it must be averred, that the note was presented for payment at that place, even in an action against the maker. In cases where several notes have been made by the defendant, and which are due and payable, a count on each note ought to be inserted in the declaration. To the special count or counts, such of the common counts ought to be added as may be adapted to the circum. stances of the case. Although on a count for money lent, or for money had and received, a promissory note may be given in evidence, as affording a presumption that so much money was lent, or had and received, and although the jury, in case such evidence be not rebutted, will conclude against the defendant, yet it is advisable to declare specialiy on the note; for otherwise, in the case of a judgment by default, the usual refereuce to the master in B. R. or prothonotary in C. B. cannot be made to compute principal, interest, and costs'. Where a note is payable to A. or order, and endorsed, the endorser is considered as a warranter of the note; and, therefore, it is necessary, in an action brought against the endorser, to allege and prove a demand of the maker, and notice of default or refusal to pay within a reasonable time by the holder himself". Gordon v. Austin, 4 T. R. 611. k Str. 725. I Osborne v. Noad, s T. R. 649. m Adjudged in C. B. E. 4 G. 2. cited by Lee C. J. in 2 Str. 1087. recognised by Lord Mansfield C. J. in 2 Burr. 676. n Tindal v. Brown, 1 T. R. 167. To an action on a promissory note, any plea may be pleaded which the law permits to be pleaded to actions founded on contract, e. g. accord and satisfaction, coverture, infancy, payment, statute of limitations, set-off, tender; as to which, see ante, tit. Assumpsit, s. IV. p. 110.—147. To an action of assumpsit by A., B., and C., against D.o, as one of the endorsers of a promissory note drawn by E., in favour of C., D., and (himself) E., then in partnership, and by them endorsed to A., B., and C.; defendant pleaded in bar, that C. one of the plaintiffs, was liable as an endorser, together with D. On special demurrer the plea was holden to be good; Lord Eldon C. J. observing, that the subject of this plea could not have been pleaded in abatement; because a plea in abatement ought to give a better writ, not to shew that the plaintiff can have no action at all. The effect, however, of a judgment for the defendant would be, that if a man made a note to himself and others carrying on business under a particular firm, and that partnership was dissolved, the promissory note could neither be put in suit as such, nor enforced as an equitable agreement, because on a promissory note stamp. Considering, therefore, the quantity of circulating paper in this country, standing under the same circumstances with the note in question, the consequence of such a decision might be highly injurious, However, the case of Moffatt v. Van Millengen was unanswerable. Evidence. In an action on a promissory note, to which the general issue is pleaded, the plaintiff must prove every material allegation in the declaration. It is a general rule, that to prove the contract the original note must be produced in evidence. This rule is dispensed with in special cases only, as where it can be proved, that the note has been lost or destroyed by the defendants, or that it is in the hands of the defendant, and that he has had notice to produce it. In these cases a copy of the note, or parol evidence of its contents, may be received. The remaining evidence necessary to support the action will vary according to the character in which the parties bring the action. In an action by payee against the maker, the hand-writing of the maker must be proved by the subscribing witness, • Mainwaring v. Newman, 2 Bos. & Pul. 120. p27 G. 3. B. R. 2 Bos. & Pul. 124. q Lord Raym. 731. n.. (c.) if any; if not, by some person who is competent to prove such hand-writing. In an action, by first endorsee against the maker, the same evidence as in the preceding case, together with proof of the endorsement to the plaintiff, will be necessary. In an action against an endorser, proof of the hand-writing of the maker, or of any endorser prior to the defendant (except the first,) unless specially alleged in the declaration, is not necessary; but in this case it must be proved that payment was duly demanded of the maker, and that the maker refused to pay, or made default therein, and that notice of such refusal or default was given to the defendant within a reasonable time. In an action against the maker of a note, although the promise be to pay the money at a particular place, it is not necessary to prove a presentment at that place. A. being in insolvent circumstances', B. undertook to be a security for a debt owing from A. to C. by endorsing a promissory note made by A. payable to B. at the house of D. The note was accordingly so made and endorsed, with the knowledge of all parties. Just before it became due, B. having been informed that D. had no effects of A. in his hands, desired D. to send the note to him, B., and said he would pay it, B. having then a fund in his hands for that purpose; the note was not presented at D.'s house till three days after it was due. It was holden, that C. could not maintain an action against B. on the note, not having used due diligence in presenting the note as soon as it was due to D. for payment, and in giving immediate notice to B. of the non-payment by D.; for B. had a right to insist on the strict rule of law respecting the endorser of a note, notwithstanding the particular circumstances of the case. In an action by a second, third, or any subsequent endorsee, against the maker, where the first endorsement is in blank; as the plaintiff is not bound to set forth any endorsement, except the first, but may strike out the others, if he adopts this course, the proof will be the same as in the preceding case; but if all or any of the endorsements subsequent to the first are set forth, they must be proved. An endorser on a note", who has received money from the payee to take it up, is a competent witness for the maker in an action against him by the endorsee, to prove that he had satisfied the note, being either liable to the plaintiff on the note, if the action is defeated, or to the defendant for money had and received, if the action succeeds; and his being also liable, in the latter case, to compensate the defendant for the costs incurred in the action, by such non-payment, makes no difference. In an action by the endorsee against the maker of a promissory note without original consideration, if the payee has become bankrupt, and obtained his certificate subsequently to the date of the note, he is not a competent witness for the defendant, for he is no longer liable to the plaintiff; but would be liable to the defendant, if the latter were obliged by this action to pay the promissory note drawn for his accommodation. Conclusion. The limits prescribed to this abridgment will not permit the insertion of any more cases under this head, nor indeed is it necessary; for although a promissory note, while it continues in its original shape, does not bear any resemblance to a bill of exchange, yet when it is endorsed, the resemblance begins; for then it is an order by the endorser upon the maker of the note to pay to the endorsee; the endorser is as it were the drawer, the maker of the note the acceptor, and the endorsee the payee. From this resemblance between a bill of exchange and promissory note, it follows that many of the rules which are applicable to bills of exchange, hold also in the case of promissory notes. x Maundrell v. Kennett, London sit- y Per Lord Mansfield C. J. Heyliu v. tings, H. T. 49 G. 3. Bayley J. I Adamson, 2 Burr. 676, Camp. N. P. C. 408 n. СНАР. Х. CARRIERS. I. Of common Carriers and their Responsibility. II. Of Notices given by common Carriers for the Pur pose of limiting their Responsibility, and the Manner in which such Notices have been construed. III. Of the Lien of Carriers. IV. By whom Actions against common Carriers ought to be brought. V. Of the Declaration. VI. Of Payment of Money into Court. VII. Evidence. I. Of common Carriers and their Responsibility. MASTERS and owners of ships, hoymen, lightermen, barge owners, proprietors of waggons, stage coaches (1), a Morse v. Slue, 2 Lev. 69. b Rich v. Kneeland, Cro. Jac. 330. Hob. 17. S. C. (1) It was ruled by Holt C. J. in Upshare v. Aidee, B. R. London Sittings, H. 8 W. 3. Comy. 25. that a hackney coachman was not a common carrier within the custom of the realm, and could not be charged for the loss of a passenger's goods, except where there was an express agreement, and money paid for the carriage of the goods. And in Middleton v. Fowler, Salk. 282. there was a like determination by Holt C. J. at N. P. in regard to stage coachmen, except such as took a distinct price for carriage of goods, as well as persons. But in a late case of Clarke v. Gray, 4 Esp. N. P. C. 177. where an action was brought against the proprietor of a stage coach, to recover the value of a trunk which had been lost while the plaintiff was travelling in the defendant's coach, |