BATCOCK H. T. 1848. " A. D. 1845, to wit, at, &c., know that the same had been or were, Queen's Bench. "or that either of them had been, or was, made upon or for the "illegal consideration in the said second plea of the said defendant "alleged; and this he the said plaintiff prays may be inquired "of by the country," &c. v. COLE. Special demurrer, that the replication stated that the plaintiff did not, before or at the time when he first became and was the indorsee and interested in the said two bills of exchange, or in either of them, know that the same had been or was made upon or for the illegal consideration in the second plea alleged, whereas the replication ought to have stated that the plaintiff did not before, or at the time when he first became and was the indorsee, or interested in the said two bills of exchange, or in either of them, know that the same had been or were, or that either of them had been or was made upon or for the illegal consideration in the second plea alleged; and also, that the traverse in the replication contained was too large; and also, that the replication was in the conjunctive, whereas the traverse ought to have been in the disjunctive; and also, that the replication, although it introduced new and material matter in the affirmative, concluded to the country, instead of conIcluding with a verification, &c. Joinder in demurrer. Charles Kelly, for the demurrer. The traverse in the replication is too large; it assumes that "interested in" means the same as when the plaintiff became the indorsee; the replication should have traversed when the plaintiff became the indorsee or holder, or interested in, that is, when he paid these several bills of exchange. In place of the conjunctive "and," the disjunctive "or" should have been used. But secondly, the traverse is too large, because the plaintiff has not denied that the consideration, or any part of it, was illegal; for if a farthing of the money was illegally lost he could not recover. Then, thirdly, it is too large, because in the plea it is alleged the money was lost at a game called hazard, and by the replication we would be bound to prove it was at that particular game the money was lost.-[CRAMP- H. T. 1848. TON, J. What issue would be tried under the replication?]-The Queen's Bench. illegal consideration, and whether or not the money was lost at the game specified. The proper form of replication is given in 3 Chit. on Plead. p. 1146, showing that the traverse should be in the disjunctive. In Steph. on Plead. p. 272 (5th ed.), it is said, "A traverse 66 may be too large, by involving in the issue quantity, time and "place, or other circumstances which, though forming part of the allegation traversed, are immaterial to the merits of the cause: "Goreham v. Sweeting (a)." Where, to an action on an attorney's bill, the plea was, that it was brought for fees at law and in equity, and no bill delivered, and the replication traversed that it was brought for fees at law and in equity, this was held ill, for the defence would have been good, if the action were brought for either: Moore v. Boulcott (b). Then there is new matter introduced in the replication, and it should, therefore, have concluded with a verification: Steph. on Plead., pp. 260, 261. [CRAMPTON, J. I doubt if the same matter be not in the plea.] Maley and Gilmore, contra. The issue tendered by the plea is, that the plaintiff had notice of the infirmity of the transaction, and that therefore his title as holder of the bill is vitiated; all the allegations tend to that one point. So, that if the demurrer taken to the replication be good, the plea is bad: Humphreys v. O'Connell (c). The plea does not allege that there was a want of consideration; and by the plea the defendant makes the holding, the indorsement and the being interested in, one averment. The defendant cannot deny the consideration, because he has not traversed the want of consideration, nor that the plaintiff was a purchaser for value: Cowlishaw v. Cheslyn (d); Eden v. Turtle (e). The sole fact the defendant would have to prove under his plea (a) 2 Saund. 207, note a. (b) 1 Bing. N. C. 323; S. C. 1 Scott, 122. (d) 1 Cr. & Jer. 48. (e) 10 Mees. & Wels. 635 BATCOCK V. COLE. BATCOCK บ. COLE. H. T. 1848. would be, that the plaintiff, at the time he became the holder of the Queen's Bench. bill, had notice of the illegality of the transaction.-[CRAMPTON, J. If the trial proceeded on the plea, and the defendant proved that you had notice, he must succeed on that plea: but the question is, having joined the three averments by the conjunctive, would there not be more proof required than the mere fact of the holding?]— But that is the defendant's own doing; we say they mean one and the same thing, and that meaning is, that the plaintiff had notice of the infirmity of the bills: Alsager v. Currie (a). It is argued the traverse is too large; but the demurrer does not state wherein it is too large. The replication denies notice of the illegal consideration, and thus puts in issue the whole substance of the plea, and therefore the conclusion to the country is proper: Hedges v. Sandon (b). It is urged that "and" should be "or ;" but when is a party indorsee of a bill? Surely not before he becomes interested in it: Marston v. Allen (c). The being interested in it, is cotemporaneous with the indorsement; and until the bill be transferred, the party is not interested in it. The word "and" is quite correct; for the two events are cotemporaneous, and the one is necessarily the result of the other. [CRAMPTON, J. A bill may be indorsed to A B in trust for CD, to whom it may be afterwards indorsed; may not the party then be interested in the bill before it is indorsed to him?]-That is a trust. Here the validity of the consideration is admitted, and the sole question at the trial would be, had the plaintiff, or had he not, notice of the infirmity in the bill? That is a defence, if true, and a direct negative and affirmative being tendered by the pleadings, the conclusion to the country is right. Even if new matter be introduced, it is but surplusage-a species of inducement to the traverse; and the rule as to new matter requiring a verification applies only when that new matter is something in support of a former pleading of the same parties. Kelly replied. Cur. ad. vult. (a) 11 Mees. & Wels. 14. (b) 2 T. R. 432. (c) 8 Mees. & Wels. 494. PERRIN, J. This was an action of assumpsit, brought by the indorsee of two bills of exchange, against the acceptor; and the declaration was framed in the short form prescribed by the Rules of 1832; and by that form is implied both an indorsement and a delivery. The defendant pleads that before accepting the bills he lost a sum of money, laying it under a videlicet, at a game of chance; and that before the plaintiff became the indorsee, the bill had been passed for that illegal consideration. The plaintiff in his replication alleges he did not know that the bills had been drawn for the illegal consideration stated in the plea; and the demurrer taken is to the effect that the replication is too large in one sense, too narrow in another; for first, it is insisted that the plaintiff should have averred he did not know that the bill had been drawn for the illegal consideration in the plea mentioned; whilst the ground of the demurrer is, that he should have denied he knew it when he became indorsee or holder, or interested in the bill. The plaintiff shows title as indorsee; and the defendant pleads that at the time when the plaintiff became the indorsee and holder and interested in the bill, he knew that it was made for the illegal consideration specified; that throws no additional proof on the plaintiff; this is a bill payable to the order of the drawer, to which no one could obtain title except by indorsement; for delivery would not give title, and therefore the words in the plea, "holder and interested in," are merely tautologous. The demurrer assumes these are distinct matters, occurring at different times, whereas they are nothing but the legal effect of the indorsement. If we adopted the suggestion that they are three distinct occurrences at three several times, the full benefit of them is given to the defendant; for the plea says, before and at the time when the plaintiff first became the holder and indorsee and interested in; and the replication says, he did not, before or at the time when he first became and was the indorsee and interested in the said bills, know that they were made for the illegal consideration averred in the plea. It is still one period; the indorsement, the holding and the being interested in, are all one matter, and not three matters. H. T. 1848. BATCOCK v. COLE. Jan. 21. H. T. 1848. BATCOCK บ. COLE. Then, it is secondly argued that the defendant would be bound to prove that the whole sum of £500 was lost at hazard; whereas, if the replication had been properly framed, he would not have been so bound. That is a mistake; the videlicet shows he could not be so bound; for all that the plea avers is, that he lost a sum, to wit, the sum of £500, and that the bills were given as security for that sum; the defendant, to sustain that averment, would only have to prove that a sum of money was lost, and that the bills were given for it. I am not quite satisfied whether, on the words of the plea, the defendant might not be obliged to prove the game at which the money was lost was hazard; but if it be necessary, the defendant has himself to blame; for the replication follows the plea, and nothing is to be proved but what is alleged in the plea. The argument on this head would make the pleading a game of chance. It was further objected that the replication should have concluded with a verification; but it introduces no new matter, and simply puts the defendant on more exact proof of his allegation. Goreham v. Sweeting was cited, to establish that by the traverse taken the matter of proof was narrowed; but that case was argued on a plea, not on a replication. The cases cited in Goreham v. Sweeting, from Yelverton & Dyer, would have met one allegation as to the precise game at which the money was lost; but on that point I offer no opinion. If the cases in Yelverton & Dyer do not apply, the defendant is not tied down to the game he has averred in his plea. I think therefore the demurrer should be overruled. CRAMPTON, J. My impression is, that the demurrer in this case should be allowed; not on the ground that the replication should have concluded with a verification; for although new matter may have been introduced, yet it is not such as the defendant could have taken issue upon. But the ground upon which I think the replication faulty is, that it offers an issue which would narrow the defendant's defence under his plea. Had the replication been de injuriâ suâ, as it might have been, the defendant would have had |