back of a bill is primâ facie evidence of its having 3dly. Proof of the plaintiff's inbeen paid by the acceptor, and will not of itself be terest, &c. evidence of a payment by the drawer, though it is produced by him '. We have seen, that in some cases, the plaintiff will Consideration, be called upon to prove the consideration, which he gave for the bill or note. In an action by the indorsee of a bill of exchange, if it appear that a prior party made it under duress, or was defrauded of it, and the plaintiff has previous notice to do so, he must be pared to prove under what circumstances, and for what value he became the holder 3. pre But the defendant will not be allowed to call on the plaintiff to prove the consideration which he gave for the bill, unless he has given him reasonable notice that he will be required to offer such proof, so that the plaintiff may come to the trial prepared to establish his consideration *. And the merely giving a notice that the plaintiff will be required to prove what consideration he gave, is not sufficient to throw the Scholey v. Walsby, Peake, 24, 5. Ante, 89. n. 2. 90, &c. 'Duncan v. Scott, 1 Campb. 100. ante, 89, n. 2.-Pattison v. Hardacre, 4 Taunt. 114. ante, 89, n. 2.-Rees v. Marquis of Headfort, 2 Campb. 574. Rees v. Marquis of Headfort, 2 Campb. 574. This was an action against the defendant as acceptor of a bill of exchange, drawn by one Whitton, payable to his own order, indorsed by him to Chamberlaine and Co. and by them to the plaintiff. The plaintiff made out a primâ facie case; but Whitten, the drawer, having been called to prove the hand-writing of the parties, it appeared from his cross examination, that he himself had never received any consideration for the bill, and had been tricked out of it by means of a gross fraud. Lord Ellenborough held, that on this ground the plaintiff was bound to prove what consideration he gave for it; and as he was not prepared to do so, his Lordship directed a nonsuit. * Paterson v. Hardacre, 4 Taunt. 114. ante, 89. n. 2. Mansfield, C. J. declared the decision of the court to be, that wherever a defendant meant to avail himself, as a defence against an action brought upon a bill of exchange, of the circumstances that the bill had been lost, or fraudulently obtained, and that the plaintiff had no right to the possession thereof, it was necessary that the defendant should distinctly give notice to the plaintiff, that he meant to insist, at the trial, that the plaintiff should prove the consideration upon which he received the bill; and no such notice having been given in this case, the rule must be discharged. Consideration. burden upon him; some suspicion must first be cast upon his title, by shewing that the bill was obtained from the defendant, or some previous holder, by undue means, after which, and not till then, the plaintiff will be required to prove how he became the holder'. And though it has been decided, that when the plaintiff has in due time received a notice from the defendant to prove the consideration, he ought to do so in opening his case to the jury; and that after his counsel have closed his case, he shall not be per mitted to go into evidence of consideration, in reply to the defendant's case; yet a different practice now prevails, and the plaintiff is allowed, after the defendant has proved that he received no value, and has cast a suspicion on the plaintiff's case, to go into full proof of the circumstances, under which he holds the bill'. If, however, the defendant can make cut a strong case of fraud or want of consideration against the plaintiff, sufficient to establish a defence, it does not then seem necessary to give the plaintiff any notice to prove the consideration. 'Reynolds v. Chettle, 2 Campb. 596. The defendant had given the plaintiff notice to prove what consideration he gave for the bill, which it was submitted he was bound to prove accordingly. Lord Ellenborough. The notice is insufficient to throw this burthen on the plaintiff, you must first cast some suspicion upon his title, by shewing that the bill was obtained from the defendant, or some previous holder, by force or by fraud. The plaintiff had a verdict. * Per L.d. Ellenborough, Delanney v. Mitchel, 1 Stark. 439. This was an action by the plaintiff as the indorsee of a bill of exchange, against the defendant as acceptor. Scarlett, for the plaintiff, having adduced the usual documentary proofs, was inclined to rest his case there, intimating, that if in the course of the cause, it should become necessary, he was prepared to prove the consideration given for the bill. The Attorney-General insisted, that since notice had been given, that one ground of defence was the want of consideration, it would not be competent to the plaintiff, after having closed his case, to go subsequently into such evidence. Lord Ellenborough held, that after such notice he could not. Humbert v. Ruding, K. B. Westminster, 13th July, 1817, action on a bill of exchange. The defendant had given notice to the plaintif to prove consideration of the bill, and Lord Ellenborough said, I think, as this is the case, you must go into proof of the consideration in the first instance. Mr. Jervis for the plaintiff. 3 Mr. Justice Abbot has at Ni. Pri. declared that this is the cor rect course. We have already stated, when the want of consi- Consideration. deration or the illegality of it will affect the plaintiff's right of action. By a recent statute it is declared, that usury in the consideration shall not affect a bonâ fide holder, who became so after the 10th day of June, 1818. In the case of a bank note, unless there be a strong presumption of fraud or want of consideration the plaintiff's interest in the security cannot be disturbed 3. its 4thly. In an action against the acceptor upon a general acceptance to pay the bill according to tenor, and in an action against the maker of a promissory note, it is not necessary to prove a presentment for payment, because such presentment, we have seen, is not essential to the action. So in the Court of King's Bench, where a bill is drawn, payable generally as to place, but has been accepted payable at a banker's or other particular place, it is not the prac 1 Ante, 88 to 115. 2 58 Geo. 3. c. 93. 3 Solomon v. Bank of England, 13 East. 135.-Ante, 192.-King T. Milson, 2 Campb. 5. King . Milson, 2 Campb. 5. Possession is primâ facie evidence of property in negotiable instruments. Therefore, in trover for a bank note, it is not a primâ facie case for the plaintiff to prove that the note belonged to him, and that the defendant afterwards converted it, and the defendant will not be called upon to shew his title to the note, without evidence from the other side, that he got possession of it malâ fide or without consideration.-Trover for a £50 Bank of England note. The plaintiff's case was, that he had lost the note from his pocket in the street, and that the defendant, into whose possession it soon afterwards came, was not the bonâ fide holder of it for a valuable consideration.-Lord Ellenborough. "There is a distinction between negotiable instruments and common chattels; with respect to the former, possession is primâ facie evidence of property. I must presume that the defendant, when possessed of this note, was a bonâ fide holder for a valuable consideration. It lies upon you to impeach his title. You might have thrown so much suspicion upon his conduct in the transaction, as to have rendered it necessary for him to prove from whom he received the note, and what consideration he gave for it. But I think you have not done so. The suspicious circumstances detailed by the witnesses may be accounted for from the defendant's ignorance. It would greatly impair the credit, and impede the circulation of negotiable instruments, if persons holding them could, without strong evidence of fraud, be compelled by any prior holder to disclose the manner in which they received them."-Plaintiff nonsuited. Ante, 320, 1. L L of the breach of contract, and other circum the action. 4thly. Evidence tice in an action against the acceptor to go into proof of a presentment at such place, unless such presentstances to sustain ment has been unnecessarily averred'. But as in the Court of Common Pleas a different doctrine has been entertained by some of the judges, it is advisable for the plaintiff to be prepared to prove that fact. When in the body of a bill or in the address at the foot, or in the body of a note, it has been made payable at a particular place, the contract is considered as qualified, and a presentment there must be averred and proved in an action against the acceptor of the bill or maker of the note3. In short, whenever a particular presentment is essential to the support of the action, or when it has been averred, it must be proved. In case of a conditional acceptance, it is necessary to allege, as well as prove, that the terms of the condition have been performed'. In an action against the drawer or indorser of a bill, or the indorser of a note, as his contract is only to pay in case the party primarily liable does not, the default of such party must be proved, or some evidence must be adduced to dispense with the necessity for such proof. Thus in an action against the drawer or indorser of a bill, or the indorser of a note, it is necessary to prove a presentment to the drawee for payment. But it is not necessary in an action against I Ante, 327. n. 1. 2 Ante, 329. n. 1. 3 332. Ante, 322, 3. As to the cases when a presentment is necessary, ante, 320 to Langston v. Corney, 4 Campb. 176.-Anderson v. Hick, 3 Campb. 179. and see Wynne v. Raikes, 5 East. 514. 2 Smith, 98. S. C. 6 Pardo v. Fuller, 2 Comyns, 579.-Heylyn v. Adamson, 2 Burr. 676. Pardo v. Fuller, 2 Comyns, 579. This was an action on a promissory note against the indorser. At the trial before Chief Justice Willes, at Guildhall, it was doubted whether the plaintiff ought not to prove a demand upon the drawer; before the action was brought, the matter of proof was left to the jury, whether a demand was made or not. On a notion for a new trial, Judge Fortescue mentioned the case of Davies and Mason, 1 Geo. 2. in the court of Common Pleas, wherein it was agreed by the court, that there ought to be a demand upon the drawer, for the indorser undertook conditionally only, if the drawer of the breach of contract, and other circum stances to sustain the indorser of a bill, to prove any presentment to, or 4thly. Evidence demand upon the drawer, because the indorser by the act of indorsement, engages, that the bill shall be paid, which contract being broken by the dishonour of the the action. bill, the holder is intitled to sue without reference to the drawer's breach of contract. When the action is did not pay. Indeed, if a note be forged, Chief Justice Holt held the indorser liable though no demand, and indeed no demand can be, for when a note is forged, there is no drawer. So on a note payable to a man or bearer, no demand need be from him to whom it is made payable. But a new trial was denied, for the evidence of the demand was left to the jury who were proper judges of that fact, and knew best the course of dealing. 441. Heylyn v. Adamson, 2 Burr. 669.675.-Bromley v. Frasier, 1 Stra.. It was determined in the case of Heylyn v. Adamson, 2 Burr. 669, which examines and reconciles the authorities upon the subject, that to entitle the indorsee of an inland bill of exchange, to bring an action against the indorser upon failure of payment by the drawee it is not necessary to make any demand of or enquiry after the first drawer, This point had been laid down differently in different books, owing to the drawer of a bill of exchange being confounded with the maker of a promissory note. Vide 1 Ld. Raym. 443.-R. T. Hardw. p. 322.— 2 Burr. 677. The distinction subsisting between them is thus clearly and satisfactorily laid down by Lord Mansfield, 2 Burr. 675, by whom the law upon the subject now seems to be settled. "As to foreign bills of exchange, the question was solemnly determined by this court, upon very satisfactory grounds in the case of Bromley v. Frazier, 1 Stra. 441. That was an action upon the case upon a foreign bill of exchange by the indorsce against the indorser, and on general demurrer it was objected that they had not shown a demand upon the drawer, in whose default only it is that the indorser warrants." And because this was a point unsettled, and on which there are contradictory opinions in Salk. 131. & 133, the court took time to consider of it. And on the second argument, they delivered their opinions, that the declaration was well enough for the design of the law of merchants in distinguishing these from all other contracts by making them assignable, was for the convenience of commerce, that they might pass from hand to hand in the way of trade in the same manner as if they were specie. Now to require a demand upon the drawer will be laying such a clog upon these bills as will deter every body from taking them. The drawer lives abroad, perhaps in the Indies, where the in dorsee has no correspondent to whom he can send the bill for a demand, or if he could, yet the delay would be so great, that nobody would meddle with them. Suppose it was the case of several indorsements, must the last indorsee travel round the world before he can fix his, action upon the man from whom he received the bill. In common experience every body knows that the more indorsements a bill has, the greater credit it bears, whereas, if those demands are all necessary to be made, it must naturally diminish the value; by how much the more difficult it renders the calling in the money. And as to the notion that has prevailed, that the indorser warrants only in default of the drawer, there is no colour for it, for every indorser is in the nature |