CHAPTER Evidence of consideration. Production of the bill. Proof of mark. Proof of name. Proof of signature by agent. It is conceived that there must be some peculiar circumstances tending to raise a question, before the plaintiff can be required to show, that the person who signed the bill or note, and whose christian and surname agree with the defendant's, is the person who was served with the writ, for that person is the real defendant in every action. Where it is necessary to prove the consideration, and on whom the burthen of proof lies, see the Chapter on CONSIDERATION. It is not necessary to produce the bill on the trial, unless some issue be joined, which renders the production of the bill necessary (r); nor on a writ of inquiry (s); nor will statements in the plea entitle the defendant to offer evidence of it without notice to produce (t). But if interest be sought from a period before the issuing of the writ it may be necessary to produce the bill (u). If a bill or note be signed or indorsed with a mark, such mark may be proved by a person who has seen the party so execute instruments, and can recognize some peculiarity in the mark (v). Where an acceptance is by the christian and surname of the drawer, a witness who has seen him write his surname only is competent to prove the acceptance (w). An averment that the defendant made a note, "his own proper hand being thereunto subscribed," is satisfied by proof that the note was made by an agent, for those words may be rejected as surplusage (x). Hamber v. Roberts, 18 L. J., (r) Shearm v. Burnard, 10 (8) Lane v. Mullins, 1 Gale & Dav. 712; 11 L. J., Q. B. 51; 2 Q. B. 254, S. C.; Davis v. Barker, 3 C. B. 606; and the production of the bill may be rendered unnecessary by an admission of the handwriting, Chaplin v. Levy, 23 An admission under a Judge's order that a bill was accepted by A. for B., is an admission of A.'s authority (y). A promissory note, as between the original parties, is evidence of money lent (z), and of an account stated when the note falls due (a), and is admissible as a paper or writing to prove the defendants' receipt of so much money; and even although it has been invalidated, as a note, by alteration (b). But a bill which never was properly stamped is not admissible in evidence for collateral purposes, though formerly held to be so (c). An instrument though not stamped is admissible to show that the transaction is void, as for usury (d). An instrument promising payment on condition, which, as we have seen, is not a promissory note, is not evidence to sustain the money counts (e). Upon principle, it appears clearly that a bill or note can be evidence under the money counts only as between immediate parties, and the later decisions are in favour of this doctrine (ƒ), though it has been held evidence of money received to the use of the holder (g). An indorsement is primâ facie evidence of money lent by the indorsee to the indorser (h), and of an account stated (i). A check that has been presented and duly paid by the banker is no evidence of money lent by the drawer to the payee. (y) Wilkes v. Hopkins, 1 C. B. 737. (z) Clarke v. Martin, Ld. Raym. 758; per Lord Mansfield in Grant v. Vaughan, 3 Burr. 1525; Bayley, 357; Morgan v. Jones, 1 C. & J. 167; Smith v. Kendall, 6 T. R. 123; but see Fesenmayer v. Adcock, 16 M. & W. 449. Money deposited with a banker is money lent. Pott v. Clegg, 16 M. & W. 321. (a) Wheatley v. Williams, 1 M. & W. 539; Irving v. Veitch, 3 M. & W. 90. (b) Sutton v. Toomer, 7 B. & C. 416; 1 Man. & R.,125, S. C.; Tomkins v. Ashby, 6 B. & C. 541; 9 Dowl. & R. 543; M. & M. 32, S. C. But see ante. (c) Jardine v. Payne, 1 B. & Ad. 663; Jones v. Ryder, 4 M. & W. 32; Holmes v. Mackrill, 3 C. (d) Nash v. Duncomb, 1 M. & (e) Morgan v. Jones, 1 C. & J. 162; 1 Tyrw. 21, S. C. (f) Waynam v. Bend, 1 Camp. 175; Bentley v. Northhouse, M. & M. 66; Eales v. Dicker, M. & M. 324; Bayley, 357, 6th ed. (g) Vide Chitty, 9th ed. 581, and Bayley, 6th ed. p. 358; Grant V. Vaughan, 3 Burr. 1516. (h) Kessebower v. Tims, Bayley, 6th ed. 357 and 359. (i) Burmester v. Hogarth, 11 M. & W. 101; Fryer v. Roe, 12 C. B. 437. (j) Welch v. Seaborn, 1 Stark. 474; Pearce v. Davis, 1 Mood. & Rob. 365. CHAPTER Effect of admis sion under Judge's order. evidence under the common counts. What a paid check is evidence of as between drawer and payee. CHAPTER As between banker and customer. Whether an unpaid check is evidence. PROOFS IN Payee v. maker Indorsee v. maker or acceptor. that A.'s check in favour of B. has been paid by the banker, and that the check bears B.'s indorsement. For all that appears is that A.'s money has been paid by A. to B. through a banker; but whether as a loan from A. to B., or whether as a repayment of money previously due from A. to B. on some other account, or whether because B. had cashed the check, does not appear. And a fact which is equally consistent with any one of three different hypotheses is proof of no one of the three. The indorsement makes no difference, for that merely shows that the check passed through B.'s hands, and may have been added at the banker's request for the banker's better security, although had the check got into the hands of a subsequent holder with B.'s indorsement on it, that indorsement might then have been evidence of money lent by the holder to B. or of an account stated between them (k). As between banker and customer a check paid by the banker is no proof of money lent or advanced by the banker to the customer, but primâ facie it shows a return of money previously deposited by the customer with the banker. A check not presented has been held not to be evidence of money lent by the drawer to the payee (1). In an action by the payee against the maker of a note or acceptor of a bill, the plaintiff must, if the making or acceptance be in issue, prove the handwriting (m) of the person whose name appears as the maker of the note or acceptor of the bill. In an action by the indorsee against a maker or acceptor, the plaintiff must first prove the making of the note or the acceptance of the bill. We have already seen that the acceptance admits the drawing. Then the indorsement must be proved, and if it be special, it must appear that the indorsee is the person described in it. If the instrument be (k) Rogers v. Flook, Bristol Summer Assizes, 1866. (1) Pearce v. Davis, 1 M. & Rob. 365. (m) By the Common Law Procedure Act, 1852, s. 117, either party may call on the other party by notice to admit any document saving all just exceptions, and in case of refusal or neglect to admit, the costs of proving the document shall be paid by the party neglecting or refusing, unless at the trial the Judge shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice shall be given, except in cases where the omission to give the notice is in the opinion of the Master a saving of expense. And see R. 30, H. T. 1853. payable to bearer, or indorsed in blank, it is of course unnecessary to allege or prove (n) a subsequent indorsement. A promise to pay, or an offer to renew a bill or note, made to the indorsee after it is due, is an admission of the holder's title, and will make the proof of indorsement unnecessary (o). But the admission of an indorser is evidence against him only, not against other parties (p). In an action by an indorsee against an indorser, it is necessary, first, to prove the indorser's signature, which admits the ability and signature of every antecedent party (q); then a due presentment (r) for payment or acceptance, and dishonour; and, lastly, notice of dishonour, or, if the record admit of such proof, a competent excuse for neglecting to give it. An indorsement is evidence, in this action, under the common counts (s). CHAPTER Indorsee v. in dorser or drawer, and payee v. drawer. A general receipt on the back of a bill is not of itself evi- Receipt. dence of the payment by the drawer, though he produces the bill (t), for "prima facie," says Lord Kenyon, "the receipt on the back imports that it was paid by the acceptor." But this doctrine must be taken with the qualification that slight circumstances will show the contrary (u). Parol evidence is admissible to explain the receipt (x). deceased persons. An entry or statement by a person since deceased against Statements by his own pecuniary interest, whenever made, is evidence between third persons of the fact which it records (y). And a minute in writing by a person since deceased, made in the ordinary course of his business, and contemporaneous with the fact it records, is also evidence (z). (n) Unless averred in the declaration. See Chapter on TRANSFER. (o) Hankey v. Wilson, Sayer, 223; Bosanquet v. Anderson, 6 Esp. 43; Sidford v. Chambers, 1 Stark. 326; Jones v. Morgan, 2 Camp. 474. (p) Hemings v. Robinson, Barnes, 436. (g) Critchlow v. Parry, 2 Camp. 182; Chaters v. Bell, 4 Esp. 210; Lambert v. Pack, 1 Salk. 127; Macgregor v. Rhodes, 25 L. J., Q. B. 318; 6 E. & B. 266, S. C. (r) I. e. if denied by the pleas, (u) See Phillips v. Warren, 14 M. & W. 379. (x) Graves v. Key, 3 B. & Ad. 313. (y) Higham v. Ridgway, 1 East, 109. See the notes to this case in 2 Smith's Lead. Ca. 193. But as to memoranda on the bill or note itself, see the Chapter on the STATUTE OF LIMITATIONS. (z) Price v. Earl of Torrington, 1 Salk. 285. See the notes to 1 Smith's Lead. Ca. 139, and East CHAPTER ΧΧΧΥ. AMENDMENT AT THE TRIAL. There are several statutes enabling a Judge to cure a variance by amending the record at the trial; the 9 Geo. 4, c. 15; the 3 & 4 Will. 4, c. 42, s. 23; the 15 & 16, Vict. c. 76, s. 222, and the 17 & 18 Vict. c. 125, s. 96. which lain Where there is a variance between a bill or note and the record, the Judge, at the trial might, under the 9 Geo. 4, c. 15, order the record to be amended; but whether he would allow the amendment or not rested in his discretion, and it should seem that it was not competent for the Court above to review the exercise of that discretion (a). 66 Where, in an action by the indorsee against the drawer, the declaration stated that the bill was accepted, "payable at Esdaile and Co.'s, Bankers, London, or at No. 18, Poland Street, Oxford Street," and it appeared on the face of the bill that the latter alternative place of payment was not in the acceptor's handwriting, but that it had been added afterwards, Lord Tenterden refused to allow an amendment. "The object of the act of Parliament," says his Lordship, was to prevent a failure of justice from accidental errors. Now this is a blunder that no man could make who would but use his eyesight. I have always thought that we have gone too far from the strict rules for the purpose of obtaining justice in some particular case. The consequence of which has been, that those cases having been quoted as precedents, great laxity has been introduced into the practice" (b). But where, in an action by an indorsee against an indorser, the declaration stated the bill to have been made payable to the drawer, and to have been indorsed by him, whereas the bill, when produced, appeared to have been made payable to another payee, and to have been indorsed by such other payee, the Judge allowed the record to be amended, and the Court of Exchequer, after intimating an opinion that they were not competent to review the amendment, said, that in their judgment the discretion had been properly exercised (c). A variance in the date would be amended (d). An amendment could be made under this statute only where a party assumed to set out a written in strument. The power of amendment was next much enlarged by the 3 & 4 Will. 4, c. 42, s. 23, and was exercised under this ern Union Railway Company v. (a) Parks v. Edge, 1 C. & M. 22. (b) Jelf v. Oriel, 4 C. & P. (c) Parks v. Edge, 1 C. & M. 429; 3 Tyr. 364; 1 Dowl. 643, S. C. (d) Bentzing v. Scott, 4 C. & P. 24. |