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endorser and endorsee, such bill or note has no peculiar character distinguishing it from any other contract. It is open to all objections to the consideration or want of consideration, and all set offs and equities between those parties which would be available in other contracts not founded on a deed. Green, J. in Gilliat v. Lynch, 2 Leigh 503; Barker v. Prentiss, 6 Mass. 432; Pierson v. Pierson, 7 Johns. 28; Herrick v. Carman, 10 Id. 225; Schoonmaker v. Roosa &c. 17 Id. 301.

The case is not materially different when the suit is by an endorsee whose title is through a special endorsement by the payee in these terms: "Pay T. W., Esq. or order for our use" the endorsee appearing to have no property, unless as a mere factor, the same facts may be given in evidence against him as against the principal. Wilson v. Holmes, 5 Mass. 543; Lloyd &c. v. Sigourney, 3 Younge & J. 229.

And when cases arise under statutes against usury or gaming, declaring certain acts illegal, and contracts, securities, &c. founded on them void, the original taint in such cases adheres to the paper in whose soever hands it may come; it is void; and the defence may be set up as well against the innocent holder as the usurer or gambler himself. Carr, J. in Taylor v. Beck, 3 Rand. 323; Powell v. Waters, 17 Johns. 181; Unger v. Boas, 1 Harris 601.

If a bill or note be made for the purpose of raising money upon it, and be discounted at a higher premium than the legal rate of interest, and there be no party who, had it not been discounted, could maintain a suit on it when it becomes mature, then such discounting of the bill would be usurious and the bill would be void. Munn v. Commission Co. 15 Johns. 55; Knights v. Putnam, 3 Pick. 186; Whitworth v. Adams, 5 Rand. 348.

In Virginia, several of the judges have expressed the opinion that though a note be valid as between the maker and payee, yet if the payee endorse it for a usurious consideration no title passes by the endorsement, and no action can be maintained by the endorsee against the maker. Whitworth v. Adams, 5 Rand. 355, 378, 419.

In New York and Massachusetts, it has been decided that a bill free from usury in its concoction, and which is perfect and available to the party holding it, may be sold at a discount allowing the purchaser to pay less for it than it would amount to at the legal rate of interest for the time the bill has to run. Munn v. Commission Co. 15 Johns. 55; Knights v. Putnam, 3 Pick. 186; Crane v. Hendricks, 7 Wend. 569. The court would have to declare the endorsement void for usury, were it not able to say, that where a note for $1000,

is sold and endorsed on an advance of $900, the intent of the parties, endorsee and endorser, is, that the latter shall be holden for the $900 only. Cowen, J., 21 Wend. 597.

When there has been no fraud on the maker-when he is called upon to pay only what he has undertaken to pay, and is bound to pay,-it is decided in Massachusetts that he cannot defeat the action on the ground that a person, under whom the plaintiff claims, fraudulently obtained it from the payee. The plaintiff having a legal title, it is considered that payment to him would be a good discharge. Prouty v. Roberts, 6 Cush. 19.

Ever since the case of Collins v. Martin, 1 Bos. & Pul. 648, the rule of law has been that when a bill is payable to bearer any person who is the holder for value may sue upon it, whether the party from whom he has taken it had a title or not. Parke, B., 6 W. H. & G. 65.

If on the bill there be a blank endorsement, and the man who has the possession and appears to be the lawful holder delivers it to an innocent party, the assignment is good. Arbouin v. Anderson, 1 Adol. & El. N. S. 498, 41 Eng. Com. Law Rep. 642.

A man may have got possession of a bill by stealing it, yet if the bill was endorsed generally by a person competent to endorse it, the party to whom it is delivered for value and without notice has, notwithstanding any prior fraud, the right-as bona fide holder of the bill-to transfer the bill or sue upon it. Alderson, B. in Barber v. Richards, 6 W. H. & G. 66; Harvey v. Towers, Id. 660.

The possession of a bill or note, which is payable to bearer or endorsed in blank, is prima facie evidence of ownership; and also that the holder received it upon a valuable consideration paid therefor in the usual course of trade or business. Riddle v. Mandeville, 5 Cranch 332; Jackson v. Heath, 1 Bailey 355; Dean v. Hewet, 5 Wend. 257; Morton v. Rogers, 14 Wend. 580; Jarden v. Davis, 5 Whart. 338. The title of the holder is not allowed to be shaken on light grounds. Russell v. Bale &c. 2 Johns. 50; Evans v. Gee, 11 Peters 84. But where it appears that he has not given consideration for a bill or note, for which no consideration had been previously paid, he cannot recover upon it. 1 M. & W. 431.

15. How it is ascertained whether the paid a consideration for the paper. stances the onus is on him to prove

holder has or has not Under what circumthe fact.

When the plaintiff has shewn that the defendant never re

ceived any consideration for the bill or note, and has been tricked out of it by means of a gross fraud, the plaintiff has been required to prove what consideration he gave for it. Rees v. Headfort, 2 Camp. 574; King v. Milsom, Id. 5; Holme v. Karsper, 5 Binn. 469; Solomons v. Bank of England, 13 East 135, note; Woodhull v. Holmes, 10 Johns. 231; Munroe v. Cooper &c. 5 Pick. 412; Vallett v. Parker, 6 Wend. 621; Rogers v. Morton, 12 Wend. 487.

A practice grew up of giving a notice to the plaintiff, calling upon him to prove consideration. Paterson v. Hardacre, 4 Taunt. 114. The general course was, when such a notice had been given, for the plaintiff to adduce his proof in the first instance. 1 M. & W. 431.

Such notice was afterwards dispensed with. If the defendant shewed that there was originally no consideration for the bill, Lord Tenterden thought that threw it on the plaintiff to shew that value was given for it by him, or by his endorser. Thomas v. Newton, 2 C. & P. 606, 12 Eng. Com. Law Rep. 285. Again, in an action by the endorsee against the endorser of a note, where the defence was that the note had been discounted by a previous endorser for an usurious consideration, Lord Tenterden dispensed with the notice, saying the statute of 58 Geo. 3, c. 93, makes a note tainted with usury valid in the hands of a bona fide holder; and therefore the onus is upon the holder to prove he is such, otherwise the statute does not apply, and the note is void under the statute of Ann. Wyatt v. Campbell, 1 Moo. & Malk. 80, 22 Eng. Com. Law Rep. 257. Afterwards, in an action by the endorsee against the acceptor of a bill, where the defence was that the bill was originally an accommodation bill, and the notice was only given in the evening of the day on which the cause was to have been tried, Lord Tenterden said, it is matter of comment if no notice were given, or if it were not given in a reasonable time; but he did not think he ought on that ground to exclude the evidence, it being material to the issue. Mann v. Lent, 1 Moo. & Malk. 240, 22 Eng. Com. Law Rep. 301. It turned out that there was not a total failure of consideration for the bill, and that being so, the circumstances proved would not even constitute a defence in an action brought by the drawer against the acceptor; and consequently they were no answer to the action brought by the endorsee. S. C. 10 Barn. & Cress. 877, 21 Eng. Com. Law Rep. 190.

Subsequently, where a note was taken under such circumstances that the payee himself could not recover, and the holder, instead of suing his endorsers, who were solvent, and one of whom at least was known to him, brought his action against

the maker, he was required (without previous notice) to prove the consideration. Heath v. Sansom &c. 2 Barn. & Adol. 291; 22 Eng. Com. Law Rep. 78.

At this stage of the decisions, Parke, J. observed that it was difficult to reconcile the recent practice with principle; for the simple fact of want of consideration between the acceptor and drawer, or maker and payee, affords no inference. that the holder received the bill or note mala fide, or without consideration. He admitted, that when the note or acceptance has been obtained by felony, by fraud, or by duress, it has been usual to require proof of valuable consideration on the part of the endorsee; and he did not dispute the propriety of that usage, as any of those facts raises some suspicion of the title of the holder. But he was by no means satisfied that the same rule can be applied to all cases where an acceptance or note has been given without consideration. However, he thought the circumstances in Heath v. Sansom were in themselves such as required the plaintiff to prove that value was given for the endorsement. S. C.

The subject has been further considered in England, in French v. Archer, 2 Dowl. Pr. R. 130; Stein v. Yglesias, Id. 252; Lowe v. Chifney, 5 Moore & Scott 95; Bassett v. Dodgen, 10 Bingh. 40, 25 Eng. Com. Law Rep. 21; Bramah &c. v. Roberts &c. 1 Bingh. N. C. 469, 27 Eng. Com. Law Rep. 460.

The settling this question having become much more important than the particular manner in which it should be settled, the court of exchequer consulted the court of king's bench, and Littledale and Patteson, J's. withdrew the opinions they expressed in the case of Heath v. Sansom. 1 M. & W. 431. The change by Patteson, J. of his opinion, was also expressed in a case before him.

After stating that in Heath v. Sansom there were circumstances raising a suspicion of fraud, he said: "If I added on that occasion, that even independently of these circumstances of suspicion, the holder would have been bound to shew the consideration which he gave for the bill, merely because there was an absence of consideration as between the previous parties to the bill, I am now decidedly of opinion that such doctrine was incorrect." Whittaker v. Edmunds, 1 Moo. & Rob. 366. What Lord Abinger said in Simpson v. Clarke, 2 C. M. & R. 342, was also explained by him in Mills v. Barber, 1 M. & W. 431.

Thus the other judges came to the opinion of Parke, B. that the mere fact of an endorsement being made for the accommodation of the maker, does not raise any inference that

the holder has not given value for the note; the inference, he observes, is the other way-that the holder has given valuebecause that is the very object for which the note is given. Percival &c. v. Frampton, 2 C. M. & R. 180, 5 Tyrwh. 579. When, therefore, the defendant shews the simple fact that the defendant received no consideration for his acceptance, the plaintiff is not called upon to prove that he gave value for the bill; the onus probandi lays on the defendant, and he ought to go further. Mills v. Barber, 1 M. & W. 431, 2. But if a suspicion of a fraud be raised from its being shewn that something has been done with the bill of an illegal nature, as that it has been clandestinely taken away, or has been lost or stolen, then the holder must shew that he gave value for it. Lord Abinger, S. C.; Bingham v. Stanley, 2 Adol. & El. N. S. 127, 42 Eng. Com. Law Rep. 602.

Where it has been proved that the note was obtained by fraud, or affected by illegality, that affords a presumption that the person who had been guilty of the illegality would dispose of it, and would place it in the hands of another person to sue upon it; such proof casts upon the plaintiff the burden of shewing that he was a bona fide endorsee for value. That, says Parke, has been considered in later times as settled. Bailey v. Bidwell, 13 M. & W. 76. Brown v. Philpot, 2 M. & Rob. 285, is not now considered an authority. Smith v. Braine, 16 Adol. & El. N. S. 253, 71 Eng. Com. Law Rep. 253.

Bailey v. Bidwell and Smith v. Braine are the decisions of eight judges that if a bill be once infected with fraud or illegality, the consideration becomes a subject matter to be proved by the plaintiff. The rule of these cases was recognized and acted on in Harvey v. Towers, 6 W. H. & G. 660, and Bury v. Alderman, 14 Com. Bench (5 J. Scott) 95, 78 Eng. Com. Law Rep. 95. Nor is it enough always to shew that the holder gave a valuable consideration. The bill should appear to have been taken bona fide, and as Bayley, J. said, it is parcel of the bona fide whether the plaintiff had asked all those questions which in the ordinary and proper manner in which trade is conducted, a party ought to ask. Gill v. Corbitt &c. 3 Barn. & Cress. 466, 10 Eng. Com. Law Rep. 157. In this case Lawson v. Weston, 4 Esp. 66, is disapproved.

In the United States decisions have been made in several of the states in accordance with the rules now established in England: In New York, in Morton v. Rogers, 14 Wend. 582; in Pennsylvania, in Bellzhoover v. Blackstock, 3 Watts 27; Knight v. Pugh, 4 W. & S. 448; Brown v. Street, 6 W. & S. 221; Albricht v. Strempler, 7 Barr 476; in Virginia, in Vather v. Zane, 6 Grat. 265.

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