was a bona fide indorsee for value." Alderson, B., adds: “It appears to me that though the defendant is bound to aver in his plea both the illegality and want of consideration, yet if he proves the illegality, and the plaintiff does not prove the giving of the consideration, the plea is maintained."

And in Smith v. Braine (in the Queen's Bench, 3 E. L. & E. 379), Campbell, C. J., says: "But since the new rules, judges have, with entire approbation, directed juries that where the bill was illegal in its inception, or where the immediate indorser to the plaintiff obtained possession of it by fraud, the want of consideration as between him and the plaintiff may be presumed."

In Duncan v. Scott, 1 Camp. 100, which was an action by the indorsee against the drawer of a bill, the defendant had given the bill without consideration, and while under duress. Lord Ellenborough held that, upon these facts being proved by the defendant, the plaintiff must prove that he gave value for it before he could recover, even though it was indorsed to him before it became due.

Rees v. Headfort, 2 Camp. 574, was an action by an indorsee against the acceptor of a bill. The drawer had received no consideration, but had been tricked out of the bill by a gross fraud. Upon proof of these facts by the defendant, Lord Ellenborough held that it was incumbent on the plaintiff to show some consideration paid for the bill; and, not doing so, he was nonsuited.

Bayley, in his work on Bills (p. 372), says: "In many cases the plaintiff is compellable to prove that either he, or some preceding party, took the note bona fide, or for value, - as in case of a bill or note originally given without consideration, and while the person giving it was under duress, or in case of a bill or note obtained by fraud, or in case of a delivery by a person not entitled to make it, as in the instance of bills or notes that have been stolen or lost."

In Mills v. Barber, 1 M. & W. 425, Lord Abinger, C. B.,

says: "Where there is no fraud nor any suspicion of fraud, but the simple fact is that the defendant received no consideration for his acceptance, the plaintiff is not called upon to prove that he gave value for the bill; but if the bill be connected with some fraud, and a suspicion of fraud be raised from its being shown that something has been done with it of an illegal nature, or that it has been clandestinely taken away, or has been lost or stolen, the holder will be required to show that he gave value for it." And (p. 432) "if, in an action by an indorsee against the acceptor of a bill, the ground of defence be that the bill was obtained illegally from the defendant, and indorsed to the plaintiff without consideration, the defendant will be bound in his plea to aver both the illegality and the want of consideration; and if, at the trial, he proves the illegality, such proof will, according to the rule above stated, throw upon the plaintiff the onus of showing that he gave consideration for the bill." The same doctrine is held in Bingham v. Stanley, 2 A. & E. N. s. 117; Berry v. Alderman, 24 E. L. & E. 318.

In De La Chaumette v. Bank of England, 9 B. & C. 208, where the defendant had proved that the bill was stolen, it was held that it was incumbent on the plaintiff to show that the foreign merchant, who assigned it to him, gave full value for it.

In Harvey v. Towers, 4 E. L. & E. 531 (6 Exch. 656), Pollock, C. B., says: "This is an action on a bill of exchange, with a plea of fraud, which, according to the ordinary course of pleading, contains an allegation not merely of the fraud in obtaining the bill, but that the plaintiff gave no consideration for it. In point of law, that last allegation was necessary to make the plea a perfect answer to the action; for though a bill of exchange may have been originally concocted in fraud, or obtained by fraud, though it may have been stolen, or a party may have been swindled out of it, this is no defence to an action by the holder, unless he has

obtained it without giving value; and he may sue on it notwithstanding such defect in the title of some one else." He also holds that proof of fraud alone, by the defendant, is a sufficient sustaining of this plea to throw upon the plaintiff the burden of proving consideration; and where there is evidence of fraud for a jury, the judge should call on the plaintiff for such proof, with instructions to the jury that if they find the fact of fraud proved, the plaintiff must satisfy them that he gave consideration for the bill.

In accordance with the doctrine of these cases last cited is Greenleaf on Evidence (vol. 2, § 172), where it is said "In an action by the indorsee against the original party to the bill, if it is shown on the part of the defendant that the bill was made under duress, or that he was defrauded of it, or if a strong suspicion of fraud be raised, the plaintiff will then be required to show under what circumstances and for what value he became the holder. It is, however, only in such cases that this proof will be demanded of the holder; it will not be required where the defendant shows nothing more than a mere absence or want of consideration on his part." See also Bramah v. Roberts, 1 Bing. N. C. 469; Low v. Chifney, 1 Bing. N. C. 267.

So in 2 Phill. Ev. (4 C. & H. 8), it is said that in some cases the plaintiff, in an action upon a bill of exchange or promissory note, must prove that he or some preceding party took the bill or note bona fide, and for value, as where bills or notes have been obtained by fraud, or under duress, or have been stolen or lost. When the plaintiff has established a prima facie case, it then remains for the defendant, if he can, to impeach his title; and until he has first cast some suspicion on the title by showing that the note was lost, or obtained by force or fraud, he cannot cast the burden of proof upon the plaintiff. See also Heyden v. Thompson, 1 A. & E. 210; 1 Saund. on Pl. & Ev. 304, 305; Chitty on Bills, 79; Bayley on Bills, 500.

And in Smith's Mercantile Law, 320, it is said that the defences of duress, fraud, &c., will not prevail against a bona fide holder.

The same doctrines very generally prevail in this country, wherever the subject has received judicial consideration. Munroe v. Cooper, 5 Pick. 412; Woodhul v. Holmes, 10 Johns. 231; Vallett v. Parker, 6 Wend. 615; Small v. Smith, 1 Den. 583; Worcester Co. Bank v. D. & M. Bank, 10 Cush. 488; Wyer v. D. & M. Bank, 11 Cush. 52; Rockwell v. Charles, 2 Hill, 499; Bissell v. Morgan, 11 Cush. 198; Crosby v. Grant, 36 N. H. 273. So in Smith on Cont., 3d Am. ed. 277 (*187), in a note by Rawle, it is said that in New York it has been held that, as soon as the defendant shows there has been usury between the prior parties, he casts on the plaintiff the burden of proving that he is a holder for value, as is the case in every instance where fraud, duress, or illegality is shown between the prior parties.

These authorities would seem conclusive that the plaintiff's exception that the evidence offered would have been no defence unless it were proved that he was not the bona fide holder must be overruled. When the defendant had proved the duress, he had made a good defence as against the original party; and because of the legal presumption that in such cases the payee, being guilty of such illegality, would dispose of the note and place it in the hands of some other person to sue upon it (Bailey v. Bidwell, ante), he had thereby cast a suspicion on the plaintiff's title, which threw the burden upon him of showing affirmatively that he was a bona fide holder for value. Nor can we see that the fact that this evidence was offered under the general issue alters the position of the parties or the state of the case.

These authorities also bear directly upon the first point taken by the defendant, that duress is a defence against any holder, however innocent he may be, and however valuable a consideration he may have paid for the note; and, if other

authorities on this point were needed, they are not wanting, In Powers v. Ball, 27 Vt. 662, Redfield, C. J., says: "Illegality, duress, fraud, and want or failure of consideration, are no defences as against a bona fide holder for value." See also St. Albans Bank v. Dillon, 30 Vt. 122; Ellicott v. Martin, 6 Md. 509; Minell v. Reed, 26 Ala. 730; Norris v. Langley, 19 N. H. 423; Knight v. Pugh, 4 Watts & Serg. 445. The verdict must be set aside, and A new trial granted.

THOMAS BAYLEY et al. v. JOHN TABER et al.

(5 Massachusetts, 286. Supreme Court, May, 1809.)

Note void by statute. Commercial paper declared void by statute is void even in the hands of a bona fide holder for value; and, therefore, where promissory notes were antedated to avoid a statutory prohibition; held, that in an action against the maker he could prove the actual date at which they were made and issued, even against an innocent indorsee.

THE declaration in this action contained thirty-seven counts upon as many promissory notes, alleged to have been made by the defendants, each under five dollars, payable to bearer on demand, for value received, and bearing date between the third day of October and the thirtieth day of December, 1804.

The action was tried upon the general issue, before Parker, J., at the sittings after the present term.

At the trial, notes comporting with the several counts were produced in evidence, all bearing the impression of plates, types, or printing. The signature of the defendants to all of them was admitted.

The defendants offered to prove that some of the notes declared on were in fact made and issued by them after the