delivered it to H. without consideration, and that the plaintiff was not a bona fide holder for value; replication de injuriâ; held, that plaintiff was entitled to a verdict on this issue, if he proved that he gave value for the bill; and that defendant could not be admitted to shew that the plaintiff was privy to the fraud. Uther v. Rich, 10 A. & E. 784. The maker of a note pleaded that it was made and delivered to W. only to get it discounted, and that W. fraudulently indorsed it to the plaintiff, who gave no consideration, and knew of the fraud; replication de injuria; letters written by W., while holding the note, are not admissible against the plaintiff to prove the fraud, without first establishing, aliunde, a privity between the plaintiff and him. Phillips v. Cole, 10 A. & E. 106.

Imbecility of the defendant.] This defence is not open to the defendant under a traverse of the making of a note, since the new rules. Harrison v. Richardson, 1 M. & Rob. 504.

Forgery.] Forgery of the defendant's signature is, of course, evidence under a traverse of it; but he cannot be permitted to prove, for this purpose, that other bills, with forged signatures of the defendant, had been in the hands of the plaintiff and circulated by him. Griffits v. Payne, 11 A. & E. 131.

Want of consideration · Onus probandi.] Since the introduction of the new rules, some doubt has existed with regard to the party upon whom the onus of proving the consideration, or want of consideration, when pleaded, rests. The point depends in some measure upon the form of the pleadings.

A bill or note imports a consideration; the holder is therefore presumed to have given value for it; and, before the late rules of pleading, the party, who sued as such, could not, in general, be put upon proof of such consideration (where the want of it would be a defence), without previous notice of an intention to dispute it, and proof of something to throw doubt upon the plaintiff's title to the bill. Thus, if the defendant, or party who ought to put it into circulation, had not in fact negotiated it, but had lost it by fraud, felony, or accident, it was a probable inference that the person who had obtained a bill by such means would put it away for less than its value. Upon proof therefore of such facts, the holder was required to shew a consideration. See the judgment of the court in Percival v. Frampton, 2 C. M. & R. 180., and Mills v. Barber, 1 M. & W. 425. Since the new rules, a special plea, alleging want of consideration, is equivalent to notice, and dispenses with it; but the old rule of practice continues so far to prevail, that, where the defence is founded simply on want of consideration (as in actions between immediate parties), and the plea alleges such want of consideration, which the plaintiff denies, the defendant is still bound to give evidence, in the first instance, in support of his plea. Percival v. Frampton, 2 C. M. & R. 180. Batley v. Catterall, 1 M. & Rob. 379. So where the plaintiff replied to such a plea that there was a consideration, "to wit, the sale of goods by the plaintiff to the defendant," concluding to the country, the defendant was held liable to the burden of proof; Low v. Burrows, 2 A. & E. 483. But where the plaintiff, instead of merely denying the defendant's allegations, states a specific

consideration in terms that make the proof of it part of the issue, then the proof of it lies upon the plaintiff. Batley v. Catterall, ubi suprà.

The plea sometimes alleges, not only want of consideration in the plaintiff, but also fraud or some other matter in a prior party throwing suspicion on the title to the bill. In this case, when the replication puts in issue the whole plea, (as when de injuria, &c. is replied), it should seem that it will be enough, in the first instance, for the defendant to prove the fraud; for this, according to the old practice, puts the plaintiff on proof of consideration. See Percival v. Frampton, and Mills v. Barber, ubi suprà.

But where the plea alleges both fraud, and want of consideration, and the replication simply traverses the want of consideration, a difference of opinion exists as to whether this be such an admission of fraud on the record, as to put the plaintiff on proof of consideration.

The Court of Exchequer has held that it is not such an admission; but that the fraud or other circumstance of suspicion must be proved at the trial, in order to oblige the plaintiff to prove that he has given value. Edmunds v. Groves, 2 M. & W. 642. Smith v. Martin, 9 M. & W. 304. On the other hand, the Court of Queen's Bench has held, that an admission on the record must be taken as an admission for every purpose in the cause, and that the plaintiff is therefore bound, on such a state of the record, to prove consideration. Bingham v. Stanley, 1 Q. B. MS. As long as this point remains unsettled, it will, of course, be necessary for the plaintiff, on such a state of the record, to provide himself with evidence either to prove that he has given value, or to negative the alleged fraud or other ground of suspicion: and the defendant, who cannot prove the alleged want of consideration, must be prepared with proof of so much of the alleged fraud as will be enough to put the plaintiff on proof of value given.

The cases above cited, in which the contradictory opinions have been expressed, are perhaps not irreconcilable in themselves. In Edmunds v. Groves, the indorsee sued the maker of a note, who pleaded that he had made it to secure a gaming debt, and that it was indorsed to the plaintiff with notice and without consideration. The plaintiff replied that it was indorsed without notice and for value; on which issue was joined. At the trial, no evidence being given, the judge directed a verdict to be entered for the plaintiff, and the Court of Exchequer held the direction right. In Bingham v. Stanley, the drawer of a check payable to bearer pleaded that he gave it to secure a debt due to L. on a gaming transaction; that L. delivered it to the plaintiff without consideration, who was suing on it for L.'s benefit: Replication, that L. delivered it to the plaintiff for a good consideration; and issue thereon. The Court of Queen's Bench held, in opposition to the ruling of Lord Denman C. J. at Nisi Prius, that the plaintiff was bound to prove that he had given value. In this case the court assented to the decision of the Court of Exchequer, but dissented from the principles laid down by the court in giving judgment. In Smith v. Martin, the plaintiff sued the maker of a note who indorsed it to F., who indorsed to G., who indorsed to the plaintiff. Plea, that while the note belonged to G., his claim on it was referred to arbitration by an order made by consent; and that G., against good faith, indorsed it to the plaintiff before award made, who took it with knowledge of the pre

mises. Issue was joined on a replication denying the plaintiff's knowledge of the premises when he took the bill. The defendant before trial gave notice to the plaintiff to prove a consideration for the indorsement to him. The Court of Exchequer held, that the defendant was bound to begin by proving knowledge of the fraud.

Before the two last cases were decided, the following case occurred at Nisi Prius. In an action by indorsee and acceptor, the defendant pleaded, that he had accepted for the drawer's accommodation, who had indorsed the bill to A. B. without consideration to get it discounted; that A. B. had fraudulently indorsed it to C. D. without consideration, who indorsed it to the plaintiff without consideration: Replication, de injuria, &c. Lord Denman C. J. held the defendant bound to prove the want of consideration between the plaintiff and C. D., as well as the previous allegations in the plea. Brown v. Philpot, 2 M. & Rob. 285. Upon this case it may be observed, that the allegation of fraud was not material to the defence; and that the mere fact of the bill being an accommodation bill was not sufficient to raise an inference against the holder's title, so as to put him on proof of consideration. See Percival v. Frampton, 2 C. M. & R. 180. Mills v. Barber, 1 M. & W.425.

Where the defendant pleaded that the bill was an accommodation bill, indorsed to plaintiff's indorser for a special purpose, and by him indorsed to plaintiff after it was due in fraud of defendant, and the plaintiff traversed the taking it after it was due, it was held that the defendant must begin and shew that the bill was due when indorsed. Lewis v. Parker, 4 A. & E. 838.

Failure or want of consideration, proof of.] In an action by indorsee against acceptor, it is not even prima facie evidence of want of consideration between the defendant and the drawer to shew that the drawer, on the day before the bill became due, procured all the indorsements to be made without consideration, in order that the action might be brought by the indorsee on the understanding that the money should be divided between one of the indorsees and the drawer. Whitaker v. Edmunds, 1 A. & E. 638. When the drawer makes the bill payable at his own house, it is evidence of an accommodation acceptance. Sharp v. Bailey, 9 B. & C. 44. In an action against a drawer by his indorsee, where defendant pleaded that the bill was given in payment for hops of a certain quality to be delivered by plaintiff, and that he did not deliver such hops, "or any hops whatever;" to which plaintiff replied de injuriâ, &c.; it was held enough for the defendant to prove the delivery of some hops of an inferior quality; and the plaintiff was not permitted to shew an acceptance of them by the defendant on this issue. Wells v. Hopkins, 5 M. & W. 7. In an action by payee against maker, defendant pleaded that the note was given to the plaintiff in consideration that he would pay the defendant's creditors, and that he promised to pay them, but had not; the replication averred that the note was delivered to plaintiff for the purpose of paying the creditors when the note was paid by defendant, and specially traversed the promise as alleged in the plea. Issue being joined on the traverse, it was held that the plaintiff entitled himself to a verdict by proving the inducement of his replication; for he thereby negatived the promise. Cole v. Cresswell, 11 A. & E. 661. Where the plea to an action on a note states an executory consideration for it, which was never executed; and the plaintiff replies de

injuria, &c.; the defendant is not precluded from proving his plea, although the note professes on the face of it to be founded on a past consideration. Abbott v. Hendricks, 1 M. & G. 791.

In general, the declarations of the former holder of a bill are not admissible to prove the want of consideration. Shaw v. Broom, 4 D. & R. 730. But where the title of the plaintiff, and of the party whose declarations are offered in evidence, is identified; as where the plaintiff took the bill from him after it became due; such declarations are admissible. Benson v. Marshal, cited 4 D. & R. 732. Beauchamp v. Parry, 1 B. & Ad. 89. And where the plaintiff, though he did not take the bill after it was due, sues as agent for the party who made the declarations, such declarations are admissible. Welstead v. Levy, 1 M. & Rob. 138.

Illegality of consideration; bona fides of holder.] In general, this objection is confined to persons, who are parties, or privies, to the illegality, and those to whom they have passed the bill without value; Bayley on Bills, 4th ed.; and a bonâ fide indorsee for value, without notice of the illegality, may recover on such bill. Wyat v. Bulmer, 2 Esp. 538. The question for the jury is now settled to be whether the party taking the bill acted with good faith? Gross negligence may be evidence of mala fides, but is not equivalent to it. Goodman v. Harvey, 4 A. & E. 870. Where the bill was given for money lost by gaming, or upon an usurious contract, or to secure money paid to induce a bankrupt's creditors to sign his certificate, various statutes made it a void security even in the hands of a bona fide holder; but by 58 G. 3. c. 93. and by 5 & 6 W. 4. c. 41., so much of the former statutes as made the securities void, is repealed, and by the last act it is enacted that they shall be deemed to have been executed for an illegal consideration.

Where the defence is usury in the indorsement, the usury must be clearly proved; suspicion is not sufficient; and in an action by the indorsee against the indorser, a conversation between the drawer and one J., a relation of the plaintiff, and who got the bill discounted for the drawer, is not evidence against the plaintiff, without proof that he was agent for him, although it appears that usurious discount was deducted by J. Bassett v. Dodgin, 10 Bing. 40. Usury, however, is no longer illegal in a bill or note payable at twelve months or less. 2 & 3 Vict. c. 37., continued till the 1st of January, 1844, by 4 & 5 Vict. c. 54. On a plea that the note was given for an illegal purpose, on which issue is taken, the plaintiff is not bound to produce it either as part of his own case or of the defendant's, though called upon to do so at the trial. Read v. Gamble, 10 A. & E. 597. In an action by the indorsee against the maker of a promissory note, letters from the payee to the maker, contemporaneous with the making of the note, were admitted to prove usury in the concoction of the note; Kent v. Lowen, 1 Camp. 177. 180. d.; but the ground of the decision seems to have been that the letters were parcel of the usurious contract itself. See Beauchamp v. Parry, 1 B. & Ad. 89., and antè, p. 31.

It will be seen by several of the cases cited under the head of Want of Consideration, antè, p. 225., that illegality in the concoction or transfer of a bill, as well as fraud, felony, &c., will, if proved, put the holder on proof of consideration. See also Bassett v. Dodgin, 10 Bing. 40.

Satisfaction.] Payment, or satisfaction, must now be specially pleaded. For presumptive evidence of such plea, see the cases cited antè, p. 21. A judgment against a subsequent party to a bill will be no satisfaction so as to discharge a prior party; it is only an extinguishment between the parties to the judgment. Hayling v. Mullhall, 2 W. Bl. 1235.; English v. Darley, 2 B. & P. 62. So taking the acceptor in execution is no discharge of the drawer. Macdonald v. Bovington, 4 T. R. 825. But a composition with the acceptor, and the taking a third person's note as a security for it, operates as a satisfaction of the bill. Lewis v. Jones, 4 B. & C. 513. Perfect v. Musgrave, 6 Price, 111. Such defence must be pleaded specially. So where the first bill is "renewed" by taking a second. Kendrick v. Lomax, 2 C. & J. 405. But where the plaintiff held a bill accepted by defendant, who, when it became due, asked for time, and afterwards gave plaintiff another bill for the same amount, plaintiff telling him at the same time that something was due for interest, and continued to hold the first bill, and the second bill was paid after it became due; it was held that plaintiff was entitled to sue on the first bill to recover the interest. Lumley v. Musgrave, 4 New Ca. 9. Where one of three partners, after a dissolution of partnership, undertook, by deed, to pay a particular partnership debt on two bills of exchange, which was communicated to the holder, who consented to take the separate notes of the one partner for the amount, reserving his right against all three, and retaining possession of the original bills, it was held that the separate notes having proved unproductive, he might resort to his remedy against the other partners, and that the taking the separate notes, and afterwards renewing them several times successively, did not amount to satisfaction of the joint debt. Bedford v. Deakin, 2 B. § A. 210. So where, on a bill of exchange being dishonoured, the acceptor transmitted a new bill for a larger amount to the payee, but had not any communication with him respecting the first, and the payee discounted the second bill with the holder of the first, which he received back as part of the amount, and afterwards, for a valuable consideration, indorsed it to the plaintiff; it was held that the second bill was merely a collateral security, and that the receipt of it by the payee did not exonerate the drawer. Pring v. Clarkson, 1 B. & C. 14.; see also Adams v. Bingley, 1 M. & W. 192. Satisfaction as to one of several partners is a satisfaction as to all. Jacaud v. French, 12 East, 317. On a plea of payment, neither the plaintiff nor the defendant is bound to produce the note; nor is the defendant obliged to give notice to produce it: and where the plea stated, by way of introduction to an allegation of payment, that the note was given in lieu of a former one, and the plaintiff replied de injuriâ generally, it was held enough to shew payment without proving the superfluous introductory matter; and that, in any future action, a verdict for the defendant on such plea would be no evidence against the plaintiff of such superfluous statements. Shearm v. Burnard, 10 A. & E. 593.

Discharge and waiver.] An acceptor may be discharged from liability by an express renunciation by the holder; thus, where the holder agreed to "consider the acceptance at an end," made an entry to that effect in his account book, and abstained for three years from suing him, the acceptor was discharged. Walpole v. Pulteney, cited 1 Doug. 249. So a message to the acceptor of an accommodation bill, that the