Ellaby v. Moore.

ELLABY U. MOORE.

May 9, 1853.

Practice Common Law Procedure Act Reg. Gen. r. 50— Motion for New Trial.

The plaintiff, on the 24th of March, gave notice of trial for the first sittings for London in Easter term, and on the 20th of April gave notice of his intention to enter and try the cause as undefended at the second sittings. The defendant accordingly did not appear at the first sittings, on the 22d of April, when the cause was tried, and a verdict found for the plaintiff. The defendant, on the 6th of May, moved for a rule to set aside the proceedings for irregularity:

Held, that he ought to have moved within four days from the day of trial.

In this case the plaintiff gave notice of trial, on the 24th of March, for the first sittings for London in last Easter term; and on the 20th of April served a notice of his intention to enter and try the cause as undefended at the second sittings for London in Easter term. The defendant treated this latter notice as a notice of trial by continuance from the first to the second sittings, and did not appear at the first sittings, on the 22d of April, when the cause was taken in his absence, and a verdict found for the plaintiff for 22l. 13s. 6d.

Hawkins, on May 6th, obtained a rule calling upon the plaintiff to show cause why the trial and verdict, and all subsequent proceedings, should not be set aside for irregularity, with costs, against which

Wood now showed cause. This motion was made too late. By the 50th rule, issued in pursuance of section 233 of the Common Law Procedure Act, "no motion for a new trial shall be allowed after the expiration of four days from the day of trial, nor in any case after the expiration of the term, if the cause be tried in term." The cause was tried on the 22d of April, and the motion was not made till after the expiration of four days, not till the 6th of May.

Hawkins, in support of the rule. This application may be made at any time before the time has elapsed for taking the next step in the cause. Here no step could have been taken till fourteen days after the trial, as speedy execution was not granted. The plaintiff has an affidavit of merits.

[JERVIS, C. J. It is safer to hold strictly to the rule, and the defendant has not come in proper time. Suppose no notice had been given here, and there had been a trial and verdict, and the defendant had known of it, he must have come within four days. If the de

1 22 Law J. Rep. (N. s.) C. P. 253.

Jewell v. Parr (or Parker.)

fendant brings 507. into court to-morrow, the rule for a new trial will be absolute, without costs; otherwise it will be discharged, with costs; and if the defendant fails on the second trial, he must pay the costs of the first also.

Per Curiam

Rule accordingly.

Jewell v. Parr, (or PARKER.)

May 26 and 27, 1853.

Bill of Exchange - Accommodation Bill Re-issue without Stamp Evidence of Negotiation and Payment.

In an action by the indorsee against the acceptor of a bill of exchange, the defendant pleaded that he accepted for the accommodation of the drawer, that the drawer negotiated the bill for his own use, and paid it when it became due; that it was afterwards delivered by the holder to the drawer, who then, without the consent of the defendant, indorsed it to the plaintiff, without having it re-stamped. The bill, on being produced at the trial, had the name of the drawer on the back, and a memorandum of the date when it was due on the face of it; and it appeared that the drawer delivered it to the plaintiff after that date : Held, that this was no evidence to go to the jury in support of the allegations in the plea, that the bill was negotiated by the drawer, and paid at maturity, commenting on Lazarus v. Cowie, 3 Q. B. Rep. 459.

Quaere, whether the plea was good.

THIS was an action by the indorsee against the acceptor of a bill drawn by J. F. Allen, upon and accepted by the defendant, and indorsed by Allen to the plaintiff.

Second plea, that the bill was accepted before it became due, at the request and for the accommodation of J. F. Allen, to enable him to raise money thereon, or indorse the same for his own use before the same should become due, and not otherwise, and there never was any value or consideration for the said acceptance or payment by the defendant of the amount of the said bill or any part thereof, except as aforesaid, and that the said J. F. Allen negotiated the said bill for his own use and benefit, according to the said terms, and paid it when it became due, and the same was then delivered to the said J. F. Allen, by the then holder thereof, fully paid, satisfied, and discharged, and that the said J. F. Allen afterwards, and after the said bill had been so paid, and when it was overdue, according to the tenor and effect thereof, without the authority of the defendant, indorsed the said bill to the plaintiff, the same not having been re-stamped after such payment. Issue thereon.

The case was tried, before Talfourd, J., at the Middlesex Sittings, after Easter term, when it appeared that the bill was accepted for the

122 Law J. Rep. (N. s.) C. P. 253; 1 Common Law Rep. 454; 17 Jur. 975.

Jewell v. Parr (or Parker.)

accommodation of Allen, who died a short time before the trial, and who had delivered the bill to the plaintiff, immediately before his death. The bill was never presented to the defendant for payment till shortly before the action was brought. The bill, on production, was found to have Allen's indorsement upon the back of it; and also a memorandum of the day when it became due on the face, the handwriting of which was not proved; and it was not re-stamped. The learned Judge left it to the jury to say, whether the bill was accepted for Allen's accommodation, and whether he negotiated it in his lifetime, and paid it when due; and they answered in the affirmative, and found a verdict for the defendant. Leave was reserved to the plaintiff to move to enter a verdict for him.

A rule nisi having been obtained to set aside the verdict, and enter a verdict for the plaintiff, or for a new trial, —

May 26. Thomas, Sergt., and Hayes showed cause. The existence of the memorandum upon the bill is evidence that is was negotiated, as it must be presumed to have been made by some person having an interest in the bill, to whom it had been indorsed; and the fact that the bill was in the hands of the drawer, raises the presumption that he had paid it.

[MAULE, J. The memorandum is scarcely enough of itself to prove that the bill had been negotiated, because it might have been made by the drawer when he was attempting to get it negotiated.]

It was, at all events, some evidence to go to the jury along with the other circumstances of the case. It is presumed that a bill is accepted within a reasonable time after the drawing, Roberts v. Bethell, 12 C. B. 778; s. c. 14 Eng. Rep. 218, and it may equally well be presumed that an indorsement takes place within a reasonable time after the acceptance. It may also be presumed that the memorandum was made at the same time as the indorsement and the negotiation of the bill.

[CRESSWELL, J. Or at the time of an attempted negotiation.]

Moreover, it may be presumed, that an accommodation bill has been negotiated, and that presumption is strengthened by the memorandum. Then, if the bill was negotiated, it may be inferred that it was paid when due, if it be found after that time in the hands of the drawer.

May 26 and 27. Byles, Sergt., and Wood. There was no evidence to go to the jury in support of the plea. The defence is founded upon the Stamp law; and it was necessary in order to support it to show that the bill had been negotiated before it was due, and had been paid at maturity by the party liable upon it. It is founded upon the case of Lazarus v. Čowie.

[MAULE, J. There seems to be a defence without reference to the Stamp laws. Apart from the Stamp laws, if the defendant accepted for the accommodation of the drawer, who paid the bill when due, and afterwards re-issued it, might not the acceptor insist that his contract was to pay the bill in the event of the drawer not paying it, and

Jewell v. Parr (or Parker.)

when the drawer paid the bill, then the acceptor's liability was at an end? Beck v. Robley, 1 H. Black. 89, n.

Without considering the Stamp law, if the accommodation acceptor leave the bill in the hands of the drawer, he will be liable to an innocent indorsee.

[MAULE, J. If a bill be re-issued with the acceptor's consent, then the Stamp law requires a new stamp; but if the bill be re-issued without his consent, then there is a defence without the Stamp Act.]

Here, the defence is, that the bill was paid by Allen after it was due, so as to make a new stamp requisite. The payment of a bill does not of necessity stop its currency. Harmer v. Steele, 4 Exch. Rep. 1; Carruthers v. West, 11 Q. B. Rep. 143; and Stein v. Yglesias, 1 Cr. M. & R. 565; show that an accommodation bill may be indorsed after it is due. It ought, therefore, to have been proved, that the bill was indorsed, and that it was paid when due. There was not in this case evidence either of negotiation or of payment.

JERVIS, C. J. I think that this rule should be made absolute. The chief question arises upon the second plea, which is founded upon the case of Lazarus v. Cowie, and which, for the purpose of the present argument, we must assume to be a good plea. I do not, indeed, concur in the opinion of the Court of Queen's Bench in that case, for I do not understand why a bill, because it requires a new stamp, is a bill which could be re-issued if there were no Stamp law. I think it is not correct to say, that the drawer of an accommodation bill is the party who is to pay. The acceptor is the first party bound to pay upon the bill, whatever claim he may have against the drawer. In order to prove the plea, it was necessary to show that the bill was issued before it was due; that it was paid when due, and that it was then re-issued, when it would be void, because the original stamp was exhausted, and no new one affixed. But these facts not having been proved, the jury were not warranted in finding for the defendant upon the plea. With respect to the indorsement, which is a fact relied upon in argument, certainly, in the ordinary course of business, a bill which is not to be negotiated is not indorsed till it is to be put in circulation; but on the other hand, a person holding an accommodation bill, and who is, therefore, anxious to negotiate it to raise money, will be likely to indorse it for that purpose. Then, as regards the memorandum upon the bill of the time at which it would become due, it is true that it might have been made by a subsequent holder of the bill; but it is equally probable that it might have been made by the drawer himself when endeavoring to negotiate it. The indorsement and the memorandum, therefore, are quite consistent with the fact of the bill never having been negotiated; and I think there was no evidence from which a jury would have been justified in finding that fact proved. Moreover, there was no proof of the payment alleged. If there had been any evidence of the negotiation of the bill, the fact of its being in the drawer's possession might have been evidence of payment. It may be, that if the drawer ever parted with the possession of the bill at all, it was only by way of pledge. For

Jewell v. Parr (or Parker.)

these reasons, I am of opinion, that there was no evidence to support either of the allegations in the plea. I think, therefore, that the verdict ought to be entered for the plaintiff.

MAULE, J. I am of the same opinion. I think there was no evidence to warrant the jury in finding that the material allegations were proved. It cannot, perhaps, be said with propriety that where the facts proved are consistent as well with the negative as with the affirmative of the allegation sought to be established, there is no evidence to go to a jury. If that rule were laid down, it might in many cases exclude evidence, which, though slight, ought to be submitted to the jury. It is a question of degree which cannot be measured arithmetically. Applying the principle, De minimis non curat lex, when it is said there is no evidence to go to the jury, we mean that there is no sufficient evidence reasonably to satisfy a jury that the fact is proved; but there may be evidence such as to satisfy a jury notwithstanding that the contrary of the fact is consistent with the evidence. For example, when the question at issue is, whether a document was written by a certain person or not, and a witness conversant with that person's handwriting, says he believes it was written by him, it is quite consistent with his evidence that the document was not written by him, and yet a jury would be well justified in finding on that evidence that it was, even though other witnesses should state their belief that the handwriting was not that of the person in question. In the case of presumptive evidence of facts, all possibility of the contrary is not to be excluded. A high degree of probability must often be treated as amounting to certainty. Even in criminal cases, it constantly happens that evidence is acted upon, even to the infliction of the extreme penalty of the law, which does not exclude the possibility of a state of things consistent with the innocence of the party charged. In the present case, however, there is not even a presumption raised in favor of the truth of the plea. It is quite as probable upon the evidence, that the bill was not paid by the drawer when due, and afterwards re-issued, as that it was. In the case of Lazarus v. Cowie the court placed the defence entirely upon the 19th section of the Stamp Act, saying, that the payment by the accommodation drawer was equivalent to payment by an acceptor for value, and operated to discharge the bill and put an end to it. That doctrine may, perhaps, be called in question; but the court in that case based its decision upon the assumption, that payment by the accommodation drawer discharged the bill entirely; and if that be so, it could not be contended that he could afterwards reissue the bill in order to charge somebody else; and if payment by such a drawer be equivalent to payment by an acceptor for value, that would be a good defence, independently of the Stamp Act, because the fresh indorsement would be an attempt to render the acceptor and other parties liable upon a new bill. The plea of Lazarus v. Cowie, it may be observed, did not allege that the bill was re-issued without the consent of the acceptor, and supposing it to have been re-issued with his consent, then without the Stamp Act that would