tion. Considera. 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 burden upon him; some suspicion must first be cast upon his title, by showing 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 permitted to go into evidence of con[401]deration, in reply to the defendant's case ; yet a different practice now prevails, and the plaintif 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 out 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. 68, note. Paterson v. Hardacre, 4 Taunt. Rees v. Marquis of Headfort, 2 Campb • Paterson v. Hardacre, 4 Taunt. 114. Ante, 68, note. Mansfield, C. J. declared the decision of the court to be, that whereever 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. 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 showing that the bill was obtained from the defendant, or some previous hold. er, by force or by fraud. The plaintiff had a verdict. & Per Lord Ellenborough, in Delanney e. Mitchell, 1 Stark. 439. This was an ac tion 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 plaintiff to prove the conside ration 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. h Abbott, C. J. has, at Nisi Prius, declared that this is the correct course. iGreen . Deakin and others, 2 Stark. 347. We have already stated, when the want of consideration or the ille- Consideragality of it will affect the plaintiff's right of action. By a recent sta- tion. tute it is declared, that usury in the consideration shall not affect a bona fide holder, who became so after the 10th day of June, 1818.1 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." of the breach tion. [ 402 ] 4thly. In an action against the acceptor upon a general acceptance 4thly. Evi to pay the bill according to its tenor, and in an action against the maker dence of a promissory note, it is not necessary to prove a presentment for of contract, payment, because such presentment, we have seen, is not essential to and other the action. So in the Court of King's Bench, where a bill is drawn, circumstanpayable generally as to place, but has been accepted payable at a ces to susbanker's or other particular place, it is not the practice in an action tain the acagainst the acceptor to go into proof of a presentment at such place, unless such presentment 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. P When in the body of a bill, or in the address at the foot, or in a 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 note. 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 Ante, 68 to 89. 158 Geo. 3. c. 93. m Solomon v. Bank of England, 13 East, 135. Ante, 148. King v. Milson, 2 Campb. 5. King v. Milson, 2 Campb. 5. Posses sion is prima facie evidence of property in negotiable instruments. Therefore, in trover for a bank-note, it is not a prima 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 show his title to the note, without evidence from the other side, that he got possession of it mala fide or without consideration. Trover for a 501. 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 bona 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 prima facie evidence of property. I must presume that the defendant, when possessed of this note, was a bona fide holder for a valuable conside- ■ Ante, 249. Ante, 254, note. P Ante, 257, note. 9 Ante, 250, 1, 2. It As to the cases when a presentment is Langston v. Corney, 4 Campb. 176. the breach of contract, 4thly. Evi- must be adduced to dispense with the necessity for such proof. Thus dence of 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 payand other ment. Though it is not necessary to prove that the presentment was circumstan-made by the person named in the declaration." Nor is it necessary in ces to sus an action against the indorser of a bill, to prove any presentment to, or tain the ac-demand upon the drawer, because the indorser by the act of indorse[403]ment, engages that the bill shall be paid, which contract being broken by the dishonour of the bill, the holder is entitled to sue without reference to the drawer's breach of contract. When the action is for tion. 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 Guldhall, 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 motion for a new trial, Judge Fortescue mentioned the case of Davies v. 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 did not pay. Indeed, if a note be forged, Chief Justice Holt held the indorser liable though on 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. 55. "Boehm v. Campbell, 1 Gow, C. N. P. "Heylyn v. Adamson, 2 Burr. 669. 675. Bromley v. Frasier, 1 Stra. 441. 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 inquiry 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. Rap. Temp. 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 r. Frasier, 1 Stra. 441. That was an action upon the case upon a foreign bill of exchange by the indorsee 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 Saik. 131. and 133, the court took time to consider of it. And on the second argument, they deli vered 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 indorsee 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 of a new drawer, and at Nisi Prius the indorsee is never put to prove the hand of the first drawer, where the action is against an indorser. The requiring a protest for non-acceptance is not because a protest amounts to a demand, for it is no more than giving a notice to the drawer to get his effects out of the hands of the drawee, who, by the others drawing, is supposed to have soff cient wherewith to satisfy the bill. Upos the whole they declared themselves to be of opinion, that in the case of a foreign bill of exchange, a demand upon the the breach default by the drawee to accept, a due presentment, and a refusal must 4thly. Evi also be proved; and when it was essential from the circumstance of dence of the bill being payable at a banker's, that a presentment should be of contract, made there, such presentment must, in an action against the drawer or and other indorser of a bill be proved to have been made in due time, and proof circumstanof a presentment by a notary in the evening, when no person was at the ces to susbanking-house to give a proper answer, will not suffice, though if it tion. appear that upon such presentment in the evening, there was some person at the bankers' who in pursuance of authority gave an answer to [405] the holder, such evidence would suffice." In an action against the drawer or indorser of a foreign bill (and in an action on an inland bill when a protest is averred,") it is necessary to prove a protest for non-acceptance, or non-payment, the requisites and points relating to it which have already been considered. But in the case of an inland bill, interest or damages may be recovered from a drawer or indorser without proof of a protest. A protest apparently under the seal of a notary public, and made abroad, need only be produced, and proves itself without showing by whom it was made. drawer is not necessary to make a charge upon the indorser, but the indorsee has the liberty to resort to either for the money, consequently the plaintiff (they said) must have judgment. Every ineonvenience here suggested, holds to a great degree, and every other argument holds equally in the case of inland bills of exchange. We are therefore all of opinion, that to entitle the indorsee of an inland bill of exchange to bring an action against the indorser upon failure of payment of the drawee, it is not necessary to make any demand of or inquiry after the first drawer. The law is exactly the same, and fully settled upon the analogy of promissory notes to bills of exchange, which is very clear, when the point of resemblance is once fixed. While a promissory note continues in its original shape of a promise, from one man to pay to another, it bears no similitude to a bill of exchange. When it is indorsed, the resemblance begins, for then it is an order by the indorser upon the maker of the note (his debtor by the note) to pay to the indorsee. This is the very definition of a bill of exchange. The indorser is the drawer, the maker of the note is the acceptor, and the indorsee is the person to whom it is made payable. The indorser only undertakes, in case the maker of the note does not pay. indorsee is bound to apply to the maker of the note, he takes it upon that condition, and therefore must in all cases know who he is, and where he lives, and if after the note becomes payable, he is guilty of a neglect, and the maker becomes insolvent he loses the money, and he cannot come upon the indorser at all. Therefore, before the indorsee of a promissory note brings an action against the indorser, he must show a demand or due CHITTY ON BILLS. The But diligence to get the money from the maker of the note, just as the person to whom the bill of exchange is made payable, must show a demand or due diligence to get the money from the acceptor, before he brings an action against the drawer. This was determined by the whole court of Common Pleas, upon great consideration in Pasch, 4 Geo. 2, as cited by my Lord Chief Justice Lee, in the case of Collins v. Butler, 2 Stra. 1087. So that the rule is exactly the same upon promissory notes as it is upon bills of exchange, and the confusion has in part arisen from the maker of a promissory note being called the drawer, whereas by comparison to bills of exchange, the indorser is the drawer. All the authorities, and particularly Lord Hardwicke, in the case of Hamerton v. Mackerell, Mich. 10 Geo. 2. according to my Brother Denison's state of what his Lordship said, put promissory notes and inland bills of exchange just upon the same footing, and the statute expressly refers to inland bills of exchange. But the same law must be applied to the same reason to the substantial resemblance between promissory notes and bills of exchange, and not to the same sound which is equally used to describe the makers of both." tain the ac 4thly. Evi- a protest made in England, must be proved by the notary who made it, and by the subscribing witness, if any.s(1) dence the breach of contract, tain the ac and other In an action against the drawer or indorser of a bill, or indorser of a eircumstan-note, it is in general necessary to prove that due notice of the dishonour ees to sus was given to the defendant. The requisites and time within which notion. tice of non-acceptance or non-payment must be given, have already been considered. This, we have seen, cannot be left to inference without positive proof, and therefore a witness swearing that he gave notice in two or three days after the dishonour, when three days would be too late, will not be sufficient proof.* We have already considered what notice of non-acceptance1 and non-payment is sufficient. If the notice was given by letter, or in writing, it has been decided, that evidence of the contents of such notice cannot be given without first proving the service of a notice to the [406] defendant to produce such letter or writing, and it is still advisable to serve such notice to produce." But in some recent cases it has since 10 Mod. 66. Peake Law of Evid. 4th ed. 8 Chesmer v. Noyes, 4 Campb. 129. h Ante, 196 to 240. Lawson v. Sherwood, 1 Stark. 314. S. 28. 1 Ante, 215 to 230. Ante, 309 to 320. Shaw v. Markham, Peake's Rep. 163. Langdon v. Hulls, 5 Esp. Rep. 156. Peake's Law of Evid. 4th ed. 115. Phil. Evid. 3d edit. 395. Shaw v. Markham, Peake, 165. Assumpsit against the defendant as indorser of two promissory notes drawn by Thomas Thomas. A witness of the name of Osborne swore, that when Thomas dishonoured the note, he wrote three letters to the defendant to inform him of it, and sent one to his living at Chester, another to his living at Yorkshire, and a third to the bookseller's where he usually lodged when in London. No notice had been given the defendant to produce these letters, nor any copy kept. Erskine, for the defendant, objected to the evidence, contending, that no notice having been given to produce these letters the plaintiff could not give parol evidence of their contents. Bower, for the plaintiff, answered, that the letters themselves were nothing more than a notice, and that it was an established rule that no notice need be given to produce a notice. Lord Kenyon said, this objection could not be got over, and no evidence of the contents (1) A protest of an inland bill of exchange or promissory note is not necessary, nor is it evidence. Young v. Bryan, 6 Wheat. 146. The Union Bank v. Hyde, 6 Wheat. 572. Nicholas v. Webb, S Wheat. 326. By an act of the legislature of Pennsylvania, 2d January, 1815, the official acts, protests, and attestations of notaries public certified according to law under their respective hands and seals of office may be received in evidence, provided any party may contradict them by other evidence any such certificate. Under this act, notice to the indorser of the non-payment of a promissory note, is held to be an official act, and the protest is prima facie evidence thereof. Browne v. Philadelphia Bank, 6 Serg. & Rawle, 484. "Stewart v. Allison, Ibid. 324. The certificate of the notary under seal is prima facie evidence that such person is a notary public. Ibid. But the notary may be admitted to give evidence to explain or rebut the facts stated by him in the protest, Craig y. ShallAnd may even be compelled to appear and give such evidence. Wright v. Almond, Sup. Court, Pennsylvania, March Term, 1825. cross. |