to waive the want of notice: "I cannot think of remitting till I receive the draft, therefore if you think proper you may return it to Trevor and Co., if you think me unsafe." Ibid. A promise to pay will dispense with the notice, though not made to the plaintiff, but to another person who was holder of the bill at the time. Potter v. Rayworth, 13 East, 418.

Evidence under the money counts.] An indorsement is primâ facie evidence of money lent by the indorsee to his indorser. Bayl on bills, 288.

Defence.

The most usual defences in actions on bills of exchange are, 1. Want of consideration. 2. Illegality of consideration. 3. Satisfac tion, or release of the bill. 4. Giving time to certain parties. 5. Want of proper stamp.

Notice of disputing consideration.] As a consideration is presumed, the plaintiff is not supposed to come prepared to prove it, and he cannot be put upon such proof without a previous notice from the defendant to that effect. Paterson v. Hardacre, 4 Taunt. 114. It is said that in the King's Bench it is not necessary to give such notice, though it is usual and proper so to do. 2 Stark. Ev. 253. In order to entitle the defendant to give evidence of want of consideration, it is not necessary that he should give any notice to the plaintiff of his intention to do so. Mann v. Lent, 1 M. and M. 240. A notice to the plaintiff to prove the consideration is not alone sufficient to throw the burden of proof upon him. The defendant must first cast some suspicion on the plaintiff's title, by showing that the bill was obtained by force, fraud, &c.; Reynolds v. Chettle, 2 Campb. 516; King v. Nelson, 2 Campb. 5; and where notice has been given, and the plaintiff's counsel is apprised, by the cross-examination, that the consideration is disputed, it was formerly ruled that he must give his evidence in support of the bill in the first instance, and not in reply; Spooner v. Gardiner, R. and M. 86; but this practice has been since altered, and agrees with that of the King's Bench. Ibid. 255 (n). Chitty, 401, 7th ed. ante, p. 132.

In an action by the indorsce against the acceptor of a bill, if the defendant shows that there was originally no consideration for the bill, that throws it on the other party to show that he gave value for it. Thomas v. Newton, 2 C. and P. 606.

Want of consideration, defence between what parties.] The want of consideration in toto, or in part, cannot be insisted upon if the plaintiff, or any intermediate party between him and the defendant, took the bill or note, bonâ fide, and upon a valid consideration, Morris v. Lee, Bayl. on bills, 397, and an indorsee for value may 12 Eng. Com. Law Reps. 285.

recover against the acceptor of an accommodation bill though he knew it to be such. Smith v. Knox, 3 Esp. 46. Charles v. Marsden, 1 Taunt. 224. Between immediate parties, as the drawer and acceptor, drawer and payce, indorsee and his immediate indorser, want of consideration may be insisted on. Chitty on bills, 91, 5th ed.

Want of consideration, what, a defence.] A total failure of consideration, is a total bar, inadequacy, or a partial failure, a bar pro tanto only; Bayl. on bills, 344, 4th ed.; and the defendant may pay part into court, and for the rest insist on want of consideration. Barker v. Backhouse, Peake, 61. Wiffen v. Roberts, 1 Esp. 261. But a partial failure of consideration will constitute no defence, if the quantum to be deducted is matter not of definite computation but of unliquidated damages; Bayl. on bills, 395; thus where a bill is given for goods, it is no defence that the price is exorbitant; Solomon v. Turner, 1 Stark. 51; or that the goods were damaged; Morgan v. Richardson, 1 Campb. 40 (n.) Obbard v. Betham, I M. and M. MSS. But the defendant may give evidence of fraud so as to avoid the contract altogether. Lewis v. Cosgrave, 2 Taunt. 2 Solomon v. Turner, 1 Stark.' 52.

Sharo

Want of consideration-declarations of former holder when admissible.] In general, the declarations of the former holder of a bill are not admissible to prove the want of consideration. v. Broom, 4 D. and R. 730. Smith v. De Wruitz, R. and M. 212. Barough v. White, 4 B. and C. 325." 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. and R. 732.°

Illegality of consideration, a defence between what parties.] In general this objection is confined to persons, parties, or privies to the illegality, and those to whom they have passed the bill without value; Bayl. on bills, 410, 4th ed. and a bonâ fide indorsee for value, without notice of the illegality, may recover on such bill. Wyatt v. Bulmer, 2 Esp. 538. But where the bill is given for money lost by gaming, or by betting on the side of persons gaming, or knowingly lent for gaming, the contract is void by stat. 9 Anne, c. 14, sec. 1, and no one can recover on such a bill against the person losing, but the indorsee may recover against the other parties to the bill; Edwards v. Dick, 4 B. and A. 212; and by stat. 58 Geo. III. c. 93, an indorsee for value and without notice, of a bill given for an usurious consideration, may sue upon such bill. Where a statute prohibits a thing to be done, and does not expressly avoid the securities, which fall within the prohibition, then, if the violation of the law does not appear on the face of the instrument, and the

12 Eng. Com. Law Reps. 291. m 16 Id. 420.10 Id. 345. 16 Id. 221.

party taking it is ignorant that it was made in contravention of the statute, it is an available security in the hands of such persons. Per Holroyd, J., Broughton v. Manchester Water Works, 3 B. and A. 10.

Before the 58th Geo. III. c. 93, the indorsement of a bill for an usurious consideration prevented a subsequent bonâ fide indorsee from recovering on the bill, if he claimed through such indorsement. Lowes v. Mazzaredo, 1 Stark. 385. Chapman v. Black, 2 B. and A. 599. But since that statute, such an indorsee on proving that he gave a valuable consideration for the bill, may recover upon it. Wyatt v. Campbell, Chitty's Stat. 121 (n), 1 M. and M. 80, S. C.

Illegality of considerations going to part only.] If part of the consideration is illegal, the bill cannot be put in suit; Scott v. Gilmore, 3 Taunt. 226; Bayl. on bills, 406, 4th ed.; but if part of the consideration is good, the plaintiff may recover on that, though not on the bill. Robinson v. Bland, 2 Burr. 1077.

Illegality of consideration-substituted bills.] If a new bill is substituted for one which was given upon an illegal consideration, it will be subject to the same objections as the original bill, unless it is reformed so as to exclude what made it illegal; though the new bill is given to an indorsee who took the first security innocently and for value, especially if he was apprised of the illegality in the first bill. Chapman v. Black, 2 B. and A. 588, Bayley on bills, 407. But where a bond or note is void, on account of its being a security for usurious interest, a subsequent security for no more than the principal and legal interest is binding. Per Holroyd, J., Preston v. Jackson, 2 Stark. 238. Barnes v. Headley, 2 Taunt. 184. Wicks v. Gogerly, R. and M. 123. If a bill or note is given in part upon an illegal consideration, and several bills or notes are afterwards substituted in lieu thereof, the effect of the illegality may be confined to only some of the substituted bills or notes, and the others stand exempt. Thus, where a bill or note is given as to half for a gaming debt, and, as to the residue, for money lent, and two bills or notes of equal amount, are afterwards substituted for it, if the giver does any thing which may be considered an election to ascribe the gaming debt to the one, he will be liable upon the other. Habner v. Richardson, Bayley on bills, 409.

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, are evidence to prove usury in the concoction of the note. Kent v. Lowen, 1 Campb. 177, 180, d; see 1 Barn. and Adolp. 89.

Satisfaction.] The acceptor may prove in bar of the action, that the holder has received satisfaction from the drawer, provided 45 Eng. Com. Law Reps. 215. r 2 Id. 438. 3 Id. 332.

the drawer be not also the payee; Beck v. Robley, 1 H. Bl. 89 (n); but if the drawer be also the payee, he may after taking up the bill re-issue it, and the acceptor will be liable to the indorsee. Callow v. Lawrence, 3 M. and S. 95. It seems that twenty years will not afford a presumption that a bill, or note, has been satisfied, where the statute of limitations is not pleaded. Du Belloix v. Lord Waterpark, 1 D. and R. 17;t see ante, p. 14. A judgment against a subsequent party to a bill will not discharge a prior party, it is only an extinguishment between the parties to the judgment; Bayl. on bills, 267, 4th ed. Hayling v. Mulhall, 2 W. Bl. 1235, English v. Darley, 2 B. and P. 62; so the holder may sue the drawer after taking the acceptor in execution. Ibid. Macdonald v. Bovington, 4 T. R. 825. A composition with the acceptor, and the taking a third person's note as a security for the composition money, operate as a satisfaction of the bill. Lewis v. Jones, 4 B. and C. 513."

If a bill is renewed by the acceptor on the terms of his paying the costs of an action brought upon it, and these costs are not paid, the holder of the bill may sue the acceptor, though the second bill is outstanding in the hands of an indorsee. Norris v. Aylett, 2 Campb. 329. But taking a new bill from the acceptor, the original bill to be kept as a security, operates as an agreement that, in the meantime, the original bill shall not be enforced. Per Lord Ellenborough, Gould v. Robson, 8 East, 580; see Dillon v. Rimmer, 1 Bingh. 100. But 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, strictly 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 afterwrds renewing them several times successively, did not amount to satisfaction of the joint debt. Bedford v. Deakin, 2 B. and 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 bim respecting the first, and the payee discounted the second bill with the holder of the first, which be 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 collateral security, and that the receipt of it by the payee, did not amount to giving time to the acceptor of the first bill so as to exonerate the drawer. Pring v. Clarkson, 1 B. and C. 14; see also Featherstone v. Hunt, 1 B. and C. 113. Satisfaction as to one of several partners is a satisfaction as to all. Jacaud v. French, 12 East, 317.

16 Eng. Com. Law Reps. 12. u 10 Id. 393. ▾ 8 Id. 263.

w 8 Id. 10.

Release and waiver.] A release to a subsequent party will not discharge a prior party to the bill. Carstairs v. Rolleston, 1 Marsh. 207, 5 Taunt. 551, S. C. Smith v. Knox, 3 Esp. 47. An agreement to consider an acceptance "at an end;" Walpole v. Pulteney, cited Dougl. 236; or a message to the acceptor of an accommodation bill, that the business was settled with the drawer, and he need give himself no further trouble, is an express waiver, and a good defence in an action against the acceptor; Black v. Peele, cited Dougl. 236; but a declaration by the holder, that he should look to the drawer for payment, and that he wanted no more of the acceptor than another debt not connected with the bill, will not be sufficient to discharge the acceptor; Parker v. Leigh, 2 Stark. 228; and, if the holder receives part of the money from the drawer, and takes a promise from him upon the back of the bill for the payment of the residue at an enlarged time, it is for a jury to say whether this is not a waiver of the acceptance; Ellis v. Galindo, cited Dougl. 250, Bayl. on bills, 165, 4th ed.; but see Dingwall v. Dunster, Dougl. 235; where it was held, that nothing but an express declaration by the holder will discharge the acceptor. See also Parker v. Leigh, 2 Stark. 228. Adams v. Gregg, 2 Stark. 531.^ Farquhar v. Southey, 1 M. and M. 14.

Giving time.] Giving time to a principal discharges a surety, and therefore the giving time to the acceptor discharges the drawer and indorsers. English v. Darley, 2 B. and P. 61. Thus if the holder takes another bill from the acceptor at a short date, and agrees to keep the original bill in his hands as a security, it is a discharge to the indorsers. Gould v. Robson, 8 East, 570; ante, p. and see the other cases there cited. But a conditional agreement to give time to the acceptor, on his paying part, which condition is not performed by the acceptor, is not a discharge to the indorsers. Badnall v. Samuel, 3 Price, 521. An assent by the drawer or indorser to the giving time; Clarke v. Devlin, 3 B. and P. 363; see Withall v. Masterman, 2 Campb. 178; or a promise to pay the bill with a knowledge of time having been given; Stevens v. Lynch, 12 East, 38; will prevent the giving time from operating as a discharge. Forbearance to sue the acceptor will not of itself be a discharge. Walwyn v. St. Quintin, 1 B. and P. 652. English v. Darley, 2 B. and P. 62, 3 Price, 533. Taking a cognovit from the acceptor by which the time of obtaining judgment against him is not deferred, does not seem to be such a giving of time as will discharge the drawer. Jay v. Warren, 1 Carr. and P. 532, Lee v. Levi, 4 B. and C. 390, 5 Taunt. 319. The taking a warrant of attorney from the acceptor, after action brought against the indorser, cannot be given in evidence under the general issue in the latter action, being matter of defence, arising after action brought. Lee v. Levi, 4 B. and C. 320.

b

1 Eng. Com. Law Reps. 184. 3 Id. 327.3 Id 461. 11 Id. 460. • 10 Id. 364. d 1 Id. 119.