1842. SMITH บ. MARTIN. Exch. of Pleas, double averment, that consideration was given, and that the plaintiff had no knowledge of the alleged fraud. The rule on this subject is laid down in Mills v. Barber (a). That was an action by indorsee against acceptor of a bill of exchange: plea, that the bill was an accommodation bill, and that no consideration passed between any of the parties to it replication, that the drawer indorsed it to the plaintiff for consideration, on which issue was joined: and it was held that the plaintiff was not bound, in the first instance, to prove that he gave value for the indorsement to him, but that it lay on the defendant first to impeach his title, by shewing fraud or duress, or that the bill had been lost or stolen. Here the plaintiff's title is impeached on the ground of fraud, his primâ facie title arising from the possession of the note being rebutted by his own admission on the record, that it is a note tainted with fraud, whereby he stands in the same position as if that fact had been proved against him by witnesses. Lord ABINGER, C. B.-I think no rule ought to be granted in this case. If we entertained any doubt on the point, we should think it a fit case for further discussion; but the arguments which have been used have not shaken the opinion we had formed at the commencement of the case. ALDERSON, B.-I must say it seems to me to be unjust and unreasonable to prevent a party, by the rules of pleading, from denying a particular fact, and yet to call upon the jury to treat that fact as proved. If that be the law, then a double replication is of the very essence of justice. Personally, I should desire to have the matter fully discussed; but as the opinion of this Court is at variance with that which has been expressed by the Court of Queen's Bench, the difference can be settled only in a (a) 1 M. & W.425. 1842. Court of error. I have considered the decision of the Exch. of Pleas, GURNEY, B.-I agree in thinking that there ought to be no rule in this case. I think it is too much, upon these pleadings, to throw upon the plaintiff the burthen of proving that he had no knowledge of the fraud. The defendant has averred affirmatively that the plaintiff had knowledge of the fraud, and the defendant ought to prove the fact. Rule refused (a). (a) See Lewis v. Parker, 4 Ad. & Ell. 838; 6 Nev. & M. 294. SMITH .v. MARTIN. SERLE V. NORTON. Jan. 14. A post-dated cheque is alto J. gether void, also and cannot be The received in evidence for any purpose. Therefore, the plaintiff cannot, in an action on such an instrument, resort to the count for ASSUMPSIT on a banker's cheque, dated March 19, 1841, made by the defendant, delivered by him to Wright, and by Wright to the plaintiff. There were counts for money paid, and on an account stated. defendant pleaded to the first count, that he did not make the note, and also pleas denying due presentment and notice of non-payment; and to the other counts, non assumpsit. At the trial before Lord Abinger, C. B., at the London sittings after Michaelmas Term, it was proved by the because he candefendant that the plaintiff received the cheque from not prove Wright (to whom he gave value for it) some days before the date which it bore. It was contended for the plaintiff, that he might still recover on the count for money paid, and that the cheque, though post-dated, was evidence to support that count. The learned Judge thought otherwise, and directed a verdict for the defendant, giving the plain money paid, without produc ing the cheque. Exch. of Pleas, tiff leave to move to enter a verdict for him on the second 1842. SERLE v. NORTON. count for the amount of the cheque. S. Temple now moved accordingly.—The money paid by the plaintiff to Wright on the transfer of the cheque was money paid to the use of the defendant, and the cheque might be used as evidence of it. In Bayley on Bills, 358, (5th edit.), it is laid down that " a bill is primâ facie evidence of money lent by the payee to the drawer, and a note of money lent by the payee to the maker, and each, consequently, of money had and received by the drawer or maker to the use of the holder, and of money paid by the holder to the use of the drawer or maker." The case of Dimsdale v. Lanchester (a) shews, that an action for money had and received may be maintained by the indorsee of a promissory note against the maker. The party originally giving the cheque acknowledges himself to have money in his hands to the use of the party to whom he gives it, and so also of the person to whom that party gives it for value. [Lord Abinger, C. B.-That is to make an action on an implied contract assignable.] The maker calls upon each bearer to pay the amount to the party from whom he receives it, and undertakes that either his banker or he will pay it to the holder. Eales v. Dicker (b) may appear to be an authority against the plaintiff; but it is distinguishable, because there the party sought to be charged on the count for money paid, was not the drawer or maker, but the acceptor of a bill. The acceptor admits a debt due to the drawer, and therefore the indorsement by him is the assignment of a chose in action; but the drawer may be said to require all the subsequent parties to pay the amount to his use. [Lord Abinger, C. B.-How does the present question arise? The cheque, being post-dated, was void, and therefore not receivable in evidence.] It may be (a) 4 Esp. 201, n. (b) Moo. & M. 324. 1842. SERLE ย. NORTON. looked at to shew the terms on which the money was ad- Exch. of Pleas, vanced by the plaintiff to Wright. [Alderson, B.-Wright could not have enforced payment of the cheque against the defendant. Then how can the payment to him on a cheque on which the defendant is not liable be payment to the use of the defendant?] According to Sutton v. Toomer (a), a promissory note which was given as a security for a deposit, and afterwards altered, may be given in evidence to shew the terms on which the deposit was made; yet there the note could not be enforced as a security. [Lord Abinger, C. B.-There the note was originally a good note, and it still remained a note for its original purpose; the objection was, that the banker had made another note without a new stamp.] The ground of decision was, that although the plaintiff could not recover by force of the instrument itself, he might recover on the count for money lent, and give the note in evidence for that purpose. Lord ABINGER, C. B.-I think there is no ground for a rule. The case cited rests on a different principle. Suppose the case of a bond, which was originally good, but was afterwards destroyed or altered; the party could not declare upon it, because he had made it void as a security by his consent; but it would still be evidence to shew the nature of the transaction. Here the cheque could not be read at all; it was altogether void. ALDERSON, B.-This was a paper altogether inadmissible as evidence. GURNEY, B., Concurred. Rule refused. (a) 7 B. & Cr. 416; 1 M. &. R. 125. Exch. of Pleas, 1842. Jan. 14. BUSSEY V. BARNETT. Where goods DEBT for goods sold and delivered, and on an account are sold for ready money, and payment is made accordingly, no debt arises, and such payment is therefore proveable under the general issue. stated. The particulars of demand claimed the sum of 31.58. 6d., being the balance of an account for goods sold and delivered by the plaintiff to the defendant. Pleas, except as to the sum of 4s. 6d., parcel &c., nunquam indebitatus; as to that sum, a tender, which was denied by the replication. At the trial before the under-sheriff of Middlesex, it appeared that the action was brought to recover an alleged balance of a disputed account for goods bought by the defendant, for ready money, at the plaintiff's shop. The defendant produced evidence to prove that, within ten minutes after the delivery of the goods at his house, he paid for them in full, with the exception of the 4s. 6d. as to which the tender was pleaded. It was objected for the plaintiff, that it was not competent to the defendant to give evidence of this payment, there being no plea of payment on the record: but the under-sheriff thought that, under the circumstances, no debt ever arose between the parties, and therefore the evidence was admissible under the plea of nunquam indebitatus, and he accordingly received it: and the tender being also proved to the satisfaction of the jury, the defendant had a verdict on both issues. C. Jones now moved for a new trial, on the ground of misdirection, and contended that the defence was inadmissible without a plea of payment. [Alderson, B.-The plea of nunquam indebitatus means, that there never was a sale of goods to the defendant on credit. This was a mere exchange of goods for money, and no debt ever arose. Lord Abinger, C. B.-There was no contract whereby the defendant became indebted to the plaintiff.] In Goodchild |