of the breach of other circum. In stances to sustain the action. shew, that a letter, containing information of the 4thly. Evidence fact, and properly directed, was put in the proper contract, and post-office', or left at the defendant's house. civil cases the post-mark upon the letter seems to evidence of the time and place when it was put into the post-office'. be Proof of having sent a notice or other paper by the post, has generally been considered in mercantile transactions to be sufficient proof of notice to the party to whom it was directed, and this on a principle of general convenience. A question has sometimes arisen as to the requisite proof of the fact of sending by the post. In one case, where it became necessary to prove that a license to trade had been sent by the plaintiff to A. B., it was proved to be the invariable course of the plaintiff's office, that the clerk, who copys a license, sends it off by the post, and writes on the copy a memorandum of his having done so; a copy of the licence in question was produced from the plaintiff's letter-book, in the handwriting of a deceased clerk, who had written a memorandum, stating, that the original had been sent to A. B.; and a witness, acquainted with the plaintiff's mode of transacting business, swore, that he had no doubt that the original had been sent according to the statement in the memorandum; this evidence was held to be sufficient. In another case relating to a bills, where the question was, whether the defendant had received notice of the dishonour of a bill of exchange, it was proved that on the day after the bill became due, the plaintiff wrote a letter, addressed to the defendant, stating, that it had been dishonoured; but this letter was put down on a table, where, according 'Sanderson v. Judge, 2 Hen. Bla. 509.-Ante, 286, notes.-Scott . Lifford, 9 East. 347. Ante, 287.-Bayl. 226. 2 3 Stedman v. Gooch, 1 Esp. Rep. 5.-Jones v. Marsh, 4 T. R. 465. Hagendon v. Reed, 2 Campb. 379. 5 Hetherington v. Kemp, 4 Campb. 193.-Phil. on Evid. 3d ed. 4thly. Evidence to the usage of his counting-house, letters for post were always deposited, and that a porter carries them stances to sustain from thence to the post-office; but the porter was not of the breach of contract, and other circum the action called, and there was no evidence as to what had become of the letter after it was put down upon the table. A notice to produce the letter had been served upon the defendant. It was contended for the plaintiff, that this was good primâ facie evidence that the letter had been sent by the post. Lord Ellenborough held, that some evidence ought to be given that the letter had been taken from the table in the countinghouse, and put in the post-office. If the porter had been called, and if he had said, that although he had no recollection of this particular letter, he invariably carried to the post-office all the letters found upon the table, this might have been sufficient; but it was not sufficient to give such general evidence of the course of business in the plaintiff's counting-house. The plaintiff, however, may prove facts to excuse his neglect to make a due presentment or a protest in the case of a foreign bill, or to give notice of nonacceptance or non-payment, as that the defendant when drawer had no effects in the hands of the drawee, from the time it was drawn until it became due'. So proof of a payment of part, or a promise to pay after full notice of the laches of the holder, we have seen, dispenses with the necessity for proof in an action against the drawee of a due presentment, protest, and notice, and has been considered as admitting all these facts, as well the right of the holder to sue'; and the same evidence suffices in an action against an indorser 3; though it has recently been considered, 2 Ante, 258 to 278. Ante, 301 to 309. where the cases establishing and qualifying this rule are collected; and see Greenway v. Hindley, 4 Campb. 52.— Lundie v. Robertson, 7 East. 231.-Potter v. Rayworth, 13 East. 417. 3 Taylor v. Jones, 2 Campb. 105. Taylor v. Jones, 2 Campb. 105. Action against the defendant as indorser of a promissory note, due May 5th, 1805. The plaintiff proved the defendant's indorsement; and also that in the year 1807 the defendant being requested to pay the note, he promised that be of the breach of other circum the action. that admitting a drawer of a bill may, by circum- 4thly. Evidence stances impliedly waive his right of defence founded contract, and on the laches of the holder, yet it must be proved, stances to sustain that an indorser has expressly waived it'. And in these cases it is to be left to the jury to say whether, under the circumstances, the defendant had notice at the time of his promise or application, that there had been no due presentment, or that the holder had otherwise been guilty of negligence. In an action by the drawer against the acceptor of a bill, payable to the order of a third person, and which the drawer has been obliged to pay, it is necessary, in support of the count, stating the return of the bill, to prove the acceptance, the demand of payment, and refusal or neglect to pay, and the return of the bill to the plaintiff, and the payment by him if averred, but it is not necessary to prove that the acceptor had effects in hand, that fact being primâ facie admitted by the acceptance 3. When the acceptor of an accommodation bill sues the drawer specially, and which he cannot do on the bill, he must prove the hand-writing of the defendant as drawer, and the payment by himself, or some spe would, but prayed for further time. There was no evidence of the presentment of the note to the maker, or of any notice of its nonpayment being given to the defendant; nor did it appear that when the defendant so promised to pay, he knew whether any application for payment had been made to the maker. Gaselee, for the defendant, contended, that the subsequent promise did not dispense with proof of the presentment and notice, unless made with full know. ledge of the laches of the holder. In the cases hitherto decided upon this subject, something appeared that might be considered a waiver of any irregularity with regard to the bill or note, which could not be inferred from a mere promise to pay, made at a time when the party, without being aware of it, was discharged from his liability. But Bayley, J. held, that where a party to a bill or note, knowing of it to be due, and knowing that he was entitled to have it presented when due to the acceptor or maker, and to receive notice of its dishonour, promises to pay it, this is presumptive evidence of the presentment and notice, and he is bound by the promise so made. Yerdict for plaintiff. 2 'Borradaile v. Lowe, 4 Taunt. 93. Ante, 308. Hopley v. Dufresne, 13 East. 275.-Horford v. Wilson, 1 Taunt. 15.-Bayl. 220. 3 Vere v. Lewis, 3 T. R. 183.-Simmonds v. Parminter, 1 Wils. 185.-Ante, 520. 4thly. Evidence cial damage, as imprisonment in execution', and which in the latter case will not suffice, unless there is a of the breach of contract, and other circum the action. stances to sustain special count in the declaration for not indemnifying. And as the presumption of law is, that the acceptor had consideration for his acceptance, it will be incumbent on him to prove the contrary. Primâ facie, a general receipt on the back of a bill, imports a payment by the acceptor. But the production of the bill from the custody of the acceptor will not afford for him primâ facie evidence of his having paid it, without proof that it was once in circulation after it had been accepted; nor is payment to be presumed from a receipt indorsed on the bill, unless it be shewn to be in the hand-writing of a person entitled to demand payment 5. So in an action by bankers to recover the amount of a bill of exchange accepted by the defendant, payable at their house, and paid by them after it was indorsed, they are bound to prove the indorsement by the payee and the defendant's acceptance, and their payment. Evidence for the defendant. WITH respect to the evidence on the part of the defendant, it must necessarily depend on the circumstances of each case. If the defendant would wish to establish that the stamp is insufficient, he should be prepared to produce and point to the particular provision of a printed copy of the stamp act on which he relies; and if the objection be, that a bill, purporting to have been made abroad, was made in England, and therefore required a stamp, it will not suffice merely to prove that the drawer was in England at the time the bill bears date, Chilton v. Wiffen, 3 Wils. 12, 13. 2 Taylor v. Higgins, 3 East. 169. Scholey v. Walsby, Peake. Rep. 25. 5 Pfiel v. Van Battenberg, 2 Campb. 439.-Ante, 388. but the fact must be established by more positive evi- Evidence for the dence'. If the defendant relies on the illegality or insufficiency of the consideration, he should, in due time before the trial, serve a notice upon the plaintiff's attorney, to prove the consideration he gave for the bill, and the time when, and person from whom he received the same, and he should prove the due service of such notice, for without such notice we have seen the defendant cannot call on the plaintiff to enter into those circumstances. The defendant should also be prepared with evidence to prove the circumstances under which the bill was drawn or negociated. If goods were delivered in part of discount, and accepted voluntarily, then the defendant must, in order to make, out a case of usury, prove the excess in the charges. But if the defendant prove that goods were forced upon him or another party, then the plaintiff may be called on to prove that they were fairly charged. If the usury was committed in discounting another bill besides that on which the action is brought, in one undivided transaction, no parol evidence is admissible as to the contents of the other bill, unless notice has been given to produce it, and which notice should be proved". In an action at the suit of an indorsee against the maker of a promissory note where the defence was usury in its creation, it was held, that letters from the payee to the maker, stating the consideration as between them, if shewn to have been cotemporaneous with the making of the note, were admissible evidence to prove the usury, without calling the payee him As to the consideration, see ante, 88 to 115, and index, title Consideration. 'Coomb v. Miles, 2 Campb. 553.-Rich v. Topping, 1 Esp. R. 176. Ante, 113, 4. Davies v. Hardacre, 2 Campb. 374. Ante, 113. 7 Hallam v. Withers, 1 Esp. R. 259. defendant. |