EVIDENCE-(continued).

When consideration to le proved-(continued).

but even after notice given, plaintiff will not be called on to prove
consideration till evidence has been given that bill was obtained
by undue means, 511, 12.

but if a strong case of fraud can be made out, no notice is neces-
sary to be given, 512.

evidence of usury will not now affect a bonâ fide holder's action,
513, Appendix, 692.

in case of a bank-note, strong evidence of fraud, or want of consi-
deration, will alone affect plaintiff's right, 513.

Fourthly. Evidence of the breach of contract, and other circumstances,

513 to 524.

not necessary to prove a presentment for payment, in an action
against acceptor of a bill, payable generally, or maker of a

note, 513. 320, 1.

and in court of King's Bench, if accepted payable at a banker's,
not necessary to prove presentment there, 513.

unless it is averred in the declaration, 514. 327, ǹ. 1.

but advisable for plaintiff to be prepared to prove that fact, as
another doctrine held in C. P. 514. 329. n. 1. 459.

but when made payable at a particular place in body of bill, or in
address, or in body of note, presentment there must be proved

514.

whenever presentment at a particular place necessary, or whenever
stated in declaration, it must be proved, 514.

in case of a conditional acceptance, performance must be averred
as well as proved, 514.

in action against drawer or indorser of a bill, or indorser of a note,
default of party primarily liable must be proved, 514.

in such action, presentment to drawee for payment must be
proved, 514.

but evidence of presentment or demand on drawer, unnecessary,
514, 5.

when action for non-acceptance, a due presentment must be
proved, 515, 6.

and when bill payable at a banker's, presentment there must be
proved, in an action against drawer or indorser, 516, 7.

and a presentment at banker's, by a notary, in the evening, is not
sufficient, 517. 331, 2. 353, 4. n. 2.

but if a person was stationed there to answer then it will be
good, 517. 354.

in an action against drawer or indorser of a foreign bill, protest
must be averred and proved, 565. 517. 395. 278.

ff averred in an action on an inland bill, it must be proved,
517.465. 278. 395.

no interest or damages recoverable on an inland bill, without proof
of protest against drawer or indorser, 282. 398. 517.
protest made abroad under seal of notary, proves itself, 517.
protest made in England must be proved by the notary who made
it and the subscribing witness, if any, 517.

in an action against drawer and indorser of a bill, and indorser of
note, proof of due notice of dishonor must be given, 518.
such proof cannot be left to inference, but it must be by positive
evidence, 518.

if notice given by letter, notice to produce same must be given
before plaintiff will be allowed to go into evidence of its con-
tents, 518. (See “ Letter.”)

EVIDENCE (continued).

Evidence of the breach of contract, and other circumstances-(continued).
but it has lately been determined that secondary evidence may be
given of the contents of a written notice without notice to pro-
duce it, 519.

and a copy of a letter containing notice of dishonor, is admissible
without notice to produce original, 519.

what is evidence in default of production of a letter, after notice to
produce was given, that due notice of dishonor was received,
519, 20.-(See "Notice of Non-Acceptance and Non-Payment.")
and proof that a letter was received from defendant, acknowledging
the receipt of a letter from holder of a named date, but not re-
ferring to its contents, is presumptive evidence of due notice of
dishonor, 520.

when evidence of notice of dishonour given, it will suffice to shew
that a letter, containing such notice, was put into the Post-Of-
fice or left at defendant's house, 521.

in civil cases, post-mark evidence of time and place, when and
where put into the office, 521.-(See " Post.")

proof that notice or other paper was sent by post, always consi-
dered sufficient, 521.-(See" Letter.")

a question sometimes arises as to what is the requisite proof of the
fact of sending by post, 521.:

instance and example cach way, 521, 522.

plaintiff may prove facts to excuse neglect to present to give no-
tice, or to protest in case of a foreign bill, 522.

want of effects in hands of drawer sufficient excuse for these, 522.
what evidence dispensed with, on proof of a promise to pay, after
full notice of laches, 522.

though drawer may impliedly waive, proof is necessary of indors-
er's express waiver of holder's laches, 523. 308.

the evidence must be left to a jury to say whether at time of pro-
mise or application defendant had notice of dishonor, 523.
in an action by drawer against acceptor of a bill payable to a third
person, and taken up by drawer, what evidence necessary, 523.
not necessary to prove that acceptor had effects in his hands, 523.
acceptance primâ facie evidence of effects, 523.

when acceptor of accommodation bill sues the drawer specially,
what he must prove, 523,4.

when he must prove special damage, 524.

he must also prove no consideration, 524.

a receipt on back of bill, no evidence of payment by acceptor,
without proof of hand-writing of person entitled to make a cir-
culation after acceptance, 524.

II. Evidence for the defendant, 524 to 527.

depends on circumstances of each particular case, 524.

what evidence necessary to establish insufficiency of stamp, 524.
bill purports to be made abroad, when in fact made in England,
proof that drawer was in England at time of date not suff-
cient, 524, 5.

more positive evidence required, 525.

what proof required to establish illegality of consideration, 525.
in order to make out a case of usury, when goods were delivered
in discount, he must prove excessive charges, 525.

if defendant prove that goods were forced on him, then plaintiff
will be called on to prove the fairness of charge, 525.

if usury committed, in discounting another bill, besides that in ac-
tion brought, parol evidence of contents inadmissible, 525.
in such case notice to produce the other bill should be served, 523,

EVIDENCE-(continued).

II. Evidence for the defendant(continued).

in an action by indorsee against maker of a note, when letters from
payee to maker admissible to establish usury, without calling
payee himself, 525, 6.

but in general letters, or at least those written after a party ceased
to be holder, not admissible to impeach indorsee's title, 526.
evidence of breach of a warranty affords a complete defence, 526.
when consideration only partially failed, and exact account un-
liquidated, no evidence in reduction of damages admissible, 456.
defendant in such case driven to cross action, 526.

note given in payment of a picture, evidence of the inadequacy of
consideration not admissible, 526, 7.

but it may be evidence indicatory of fraud, to defeat the contract
altogether, 527.

sometimes necessary for defendant to be prepared with proof to
negative plaintiff's primâ facie evidence of notice, presentment,
&c. 527.

and when part payment is received, and holder take another bill
for residue, drawn and accepted by other parties, and holder
sue him on original bill, it suffices to prove presentment and
dishonor of the substituted bill, 527. 127.

in such case defendant must prove damage by want of notice of
dishonor of the substituted bill, 527. 127.

III. Competency of witnesses, 527 to 534.-(See " Witness.")
IV. Miscellaneous points on evidence.

when evidence of custom at Navy Pay-Office, for agents to nego-
tiate bills for their principals, will not be received, 33. 122. 142.
of a particular custom admissible, where law is silent, 49. 1.
usual employ evidence of general authority, 34.

parol of a wish to indulge maker of a bill or note by payee, is not
admissible, 61.478.

same when there was a parol agreement, 61. 2. 478.

date of a bill or note is primâ facie evidence of its being made on
such day, 77."

where parol is admissible, in order to rectify the mis-spelling of a
name in a bill of exchange, 82.

where the sum stated in the body of a bill is different from that in
the superscription, that in the body is primâ facie evidence of
the sum to be paid, 86.

suppression of evidence no legal consideration for a contract, 96.
of the value of goods, taken on discount of a bill, when it lies with
the plaintiff and when with the defendant, 113.

parol of the contents of a bill, when it will be received, 181. 201.
ceptance of a bill written under a date, is of the time of such
acceptance, 225.

parol admissible when a conditional acceptance is ambiguous, 237.
parol evidence of a protest for dishonor of a foreign, when it
cannot be received, 278.

what circumstance will dispense with proof of allegations in a
declaration, 305.

of impossibility to present bill for payment, may be given under
usual averment that bill was presented in due time, 319.
writing a receipt in full on back of bill paid by a draft, is not evi-
dence of an agreement to run all risks, 367.

production of a check drawn by defendant payable to plaintiff, and
indorsed by him, is evidence of payment, 369.

otherwise if parties name is merely inserted, 369.

[due, 369.

proof of delivery of a check, how far evidence of or a set-off a debt

EVIDENCE-(continued).

Miscellaneous points on evidence—(continued).

if an assent, or a promise to pay bill after time given, reversés
rule, 376.

in an action on a bill protested for non-payment, brought by an
indorser who had paid the same to an indorsee, what evidence
of such payment must be produced, 388.

indorsements of partial payments made by holder himself, evidence
to take case out of Stat. of Limitations, 388. 479.

a receipt for payment on back of bill is prima facie of payment by
the acceptor, 388.-(See " Receipt.")

what is not prima facie evidence to prove payment by acceptor, 388.
what is not a primâ facie case for plaintiff to prove in action of
trover for a bank-note, 392. 426.

what has been deemed sufficient evidence of property in trover for
bank-notes, 392. 426.

defendant need not shew his title to it till plaintiff has proved
possession mala fide, 392. 426.

protest and a second accepted bill, sufficient evidence against
drawer, though not against acceptor, 397.

a notary presents a bill for payment at a banker's after five o'clock,
is not a competent witness to prove non-payment, 400.
positive evidence that notice of non-payment was given in due
time, is always required, 400.

in what cases an unstamped check cannot be read in evidence, 411.
where fraud has been committed, in getting possession of a bank-
note, what evidence of it sufficient to be left to the jury, 427.
an instrument made in the form of a note, but not legally amount-
ing to such, is evidence of a debt, 428.

as to the stamp thereon, 428, and Appendix, 689.

question whether evidence of an acceptance after due is admissible
under an allegation that it was accepted before duc, 459.

if plaintiff declare that acceptor became liable to pay, and pro-
mise to pay according, &c. and acceptor plead the Stat. of Li-
mitations, evidence of a promise to pay long after is admissible,
459.

when acceptance alledged in an action against drawer, what will
dispense with evidence of such acceptance, 459.

of prior indorsement, not required in an action against an in-
dorser, though stated in the declaration, 461, 2.

iu an action by indorsee against acceptor, application for time is
a waiver of proof of all indorsements except the first, 462.
evidence of indorsement must be given, if a declaration on a bill,
payable to bearer, contain such statement, 462.

averment of indorsement made before bill due, supported by evi-
dence of one made after due, and vice versa, 462.

it seems the same rule prevails in regard to an acceptance, 459.-
(See "Variance.")

in an action for money lent on the common count, evidence may
be given of the debt by a note of hand, 467.

when party may or may not go into evidence of consideration in
action on a bill, 466, 7.

question whether a bill or note, &c. is evidence under common
counts for money lent, &c. in any case except between original
parties, 468.

in executing writ of inquiry, what evidence must be adduced after
judgment by default, in an action on a bill, &c. 476, 7.
indorsement of payment of interest within six years before suit
brought, made by holder himself, evidence to take case out of
Stat. of Limitations, 388. 479.-(See " Limitations.")

EVIDENCE-(continued).

Miscellaneous points on evidence-continued).

what evidence admissible under the general issue, 480. 481.
the best evidence must always be produced, 484.

EXCHANGE (See "Re-exchange.")

defined and points relating to it, 541.

when a bill or note is payable according to the course of exchange, what
liability is incurred, 300, 1. 367.

acceptor of a foreign bill only liable according to course of, 332.
when course of altered by the war, &c. what obligation to pay a bill
is imposed, 367.

if a foreign bill is payable in foreign money, rate of exchange and
value of the money at time bill due, should be proved, 484.—(See
"Evidence.")

EXCHEQUER.-(See " Practice.")

practice of, now to refer bill, &c. to master, 474.-Eiggs v. Stewart,
4 Price, 134.

wager of law, not allowed in court of exchequer, 545.

bills, persons circulating not subject to bankrupt laws, 549.

EXCISE LAWS,

[cise, 340.

contract made in repugnance of, void, 96.
extraordinary days of grace allowed by, on bills payable to the ex-
and such time allowed by the excise to drawec, does not discharge the
drawer, 340.

EXCISE OFFICER,

when release given by for penalties incurred, is sufficient consideration
for a note, 97.

EXECUTION,

a bill or note cannot be taken in execution, 3. 426.
[189. 446.
taking a party in by the holder of a bill, does not discharge the others,
the same rule prevails on joint and several bonds, 444.

suing acceptor to, and taking part payment and security for the rest,
with exception of nominal sum, indorser discharged, 374.

the rule is the same when acceptor in custody on a ca. sa. and is let
out, 374, 5.

may be taken out against, on a joint and several note against one of
the parties, and part levied without discharging the other, 380.

a subsequent indorser let out of, on a letter of licence, does not prevent
holder suing a prior indorser, 381.444.

a party to a bill charged in, but discharged as an insolvent, does not
release the liability of other parties to it, 384. 441. 4.

how notes should be made when a prisoner is declared in under the
lord's act, 429.--(See " Prisoner.")

acceptor of a bill who has been charged in execution by the holder,
and discharged by the lord's act, may be charged again by the
drawer who has paid it, 441.

if holder of a bill reject an offer to pay debt and costs, court will not
allow him to take out execution, 443.

[one, 445.
may issue against all parties to a bill, but the levy can only be against
when imprisonment in, cannot be proved as special damage in an action,
accommodation acceptor against drawer, 524.-(See "Accommodation
Bill" > 66 Evidence.")