Lail v. Coram & Co. , 3 B. Mon. 414 ( 1843 )

Judge Maesiiall

delivered the opinion of the Court.

This is a petition and summons, upon a bill of exchange, under the act of 1837, (3 Stat. Law, 491.) Coram & Co. the plaintiffs, state (in the petition,) that they are the holders of a bill of exchange on the defendants, Charles Lail, as drawer, and William A. Withers, as acceptor, in substance as follows, and then set forth the bill, ver batim, with the signature of Charles Lail, and the address to Wm. A, Withers, but do not set forth any acceptance; and a judgment having been rendered against the defendants, the sole question presented upon their writ of error for its reversal is, whether the petition is substantially defective, by reason of the omission to set forth an acceptance by Withers.

In suit by Pet. & Sum. vs drawer and acceptor of a bill of exchange, under the statute oí 1837, it is necessary to set out the acceptance in the petition.

It is contended that the introductory statement in which the defendant, Withers, is called “acceptor,” is a sufficient averment of the fact that he did accept the bill afterwards set forth; and that the insertion of the acceptance, though expressly required by the statute,“is but matter of form, or mere evidence, of the fact already averred. But it is obvious, upon inspection of the statute of .1837, and of the original statute creating the remedy by petition, that the Legislature intended, in giving the form of the petition, to require that the plaintiff, instead of averring the substance of the defendant’s contract, and of his own title to it, as might be done in other cases, should evince the liability of the defendant and his own right to sue upon that liability, by actually setting forth the written evidence of the contract, and of any assignment thereof. The office of the introductory statement is to show the character in which the plaintiff sues, and in which the defendant is sued. And it is the proper office of the body of the petition to show, as far as the prescribed form will allow, the facts on which the character and liability of the parties, as intimated in the introduc. tory statement may depend.' If these facts are intrinsic and not connected with the contract, such as the death of a party, and the grant of administration or probate, or the association of several persons under the name of a firm, as the form of the petition allows of no distinct averment of these facts, the mere descriptive statement in the introduction is properly held to be a sufficient averment; for if it were not so, a large class of cases would be excluded from the benefit of this’remedy, without any substantial reason. But with regard to the contract itself, or the assignment of it, the case is entirely different. It is the essential characteristic of this remedy, as it was undoubtedly an essential object of its institution; that the contract itself, on which the defendant is to be made liable, and any transfer of it under which the plaintiff claims title, should appear fully on the face of the petition. And although some liberality may have been exercised by the Court in determining whether the variance of a letter or a word, immaterial in itself, would vitiate the petition, we know of no ease, and presume there is none, in which the entire omission to set forth, in terms, the contract on which the defendant, or one of two defendants, is sought to be made liable, has not been held to be a fatal defect. It may be that where the demand, as sought to be enforced by petition and summons, might be enforced in an action of debt or other action, in the same manner, that is, by and against the same parties, as it is attempted to be enforced by this remedy, the principles governing such other action, or the general principles of pleading, might be resorted to for sustaining a judgment by default upon the petition. But here two defendants are sued jointly, by petition, and iu virtue of the statute’ creating and regulating that remedy, who could not be joined in any other form of action. The plaintiffs can-only sustain their joint judgment under the provisions of this statute, giving a special remedy. They can derive no aid from the common law in support of a joint action and judgment against the drawer and acceptor of a bill of exchange. Their remedy, depending exclusively upon the statute, must conform to it in substance at least; and that the setting forth of the acceptance, which is the only contract of the defendant, Withers, and the sole ground of liability, is a substantial requisition of the statute, and a most essential part of the statutory remedy, we do not, for reasons already referred to, entertain a doubt. But even in action of assumpsit or debt, would the introductory statement that A B, holder of a bill of exchange, complains of C D, as accepter, be a sufficient averment of acceptance, even though the bill itself should be copied? We suppose it would not.

There is no analogy between the omission to insert the acceptance and the omission in a petition on an assigned note, to insert, after setting out the note and assignment, the words “whereby the plaintiff has become the proprietor thereof,” which words are nothing more than the legal inference from the facts previously appearing. They are mere form and no part of the substance of the petition. The analogy would be more striking in a case where the plaintiff, styling himself assignee of (the obligee,) in the introductory statement, should set out a note payable to the obligee named, but omit wholly to insert the assignment itself. In such a case his right and character as assignee, though assumed in the commencement, would not be demonstrated by the body of the petition, as required by the statute. So in this case the character and liability of the defendant, Withers, as acceptor, though assumed in the commencement of the petition, is not subsequently demonstrated.

Trimble for plaintiffs: Morehead fy Reed for defendants.

The omission in the present case to insert or even to state the contract of the defendant, Withers, is, in our opinion, a fatal defect in the petition, entirely unaided by the statute of Jeofails.

Wherefore, the judgment is reversed and the cause is remanded, with leave to amend the petition.