1851. June 13. In an action by indorsee against acceptor of a ASSUMPSIT upon HARVEY V. TOWERS. on a bill of exchange drawn by J. Pellew and accepted by the defendant, and indorsed by J. bill of exchange, Pellew to the plaintiff. to which the defendant pleads that the bill was obtained by fraud, and that it was Plea (inter alia)—That the acceptance of the bill was obtained from the defendant by J. Pellew and others in collusion with him, by fraud, covin, and misrepresentation; and that there never was any value or consideration for the indorsement of the bill by J. Pellew to the plaintiff, and that the plaintiff held the bill without any value or injuria; consideration.-Verification. indorsed to the plaintiff without consideration, to which the plaintiff re although the latter allegation is necessary to good, proof of There were two similar pleas, except that, instead of render the plea alleging want of consideration for the indorsement, they alleged respectively that the plaintiff took the bill with notice of the fraud, and that it was indorsed to the plaintiff after it became due. the fraud casts on the plaintiff the onus of proving consideration. Upon the trial of such an issue, it is not the duty of the judge to deter mine, as a pre liminary fact, whether fraud is sufficiently proved, to cast on the plaintiff the onus of proving consideration, but only whether there is evi Replications de injuriâ. At the trial, before Martin, B., at the London Sittings after Hilary Term, 1851, the defendant, in support of the above pleas, proved that the consideration for the acceptance of the bill was, some shares in a mining concern in Cornwall, which he had been induced to purchase through the representations of the drawer of the bill; and evidence was adduced to shew that the shares were worthless, and the transaction fraudulent. Upon this evidence, the defendant's counsel submitted that, fraud having been established, the onus was cast on the plaintiff to prove that he gave value for the bill. The learned Judge expressed an opinion that the facts proved did not amount to fraud, think the fraud and that, even if fraud were established, the plaintiff was proved, in the absence of proof not bound to prove consideration, inasmuch as the affirmby the plaintiff ative of the issue was on the defendant. The plaintiff's counsel, in consequence, declined to give evidence of consideration, and addressed the jury upon the evidence of dence of fraud for the jury; and it is cor rect for him to direct them, that, if they of considera tion, the de fendant is en titled to the verdict. fraud; and the learned Judge having left that question to the jury, they found that the bill was obtained from the defendant by fraud on the part of the drawer. His Lordship, thereupon, directed a verdict for the plaintiff, reserving leave for the defendant to move to enter a verdict for him on the pleas of fraud, or to enter a nonsuit. Wilkins, Serjt., in the following Easter Term, having ob tained a rule nisi to enter a nonsuit, E. James and Maynard now shewed cause.-First, the learned Judge being of opinion that there was no evidence of fraud, the plaintiff was not bound to prove consideration, notwithstanding the finding of the jury. Where it is shewn that the bill was originally given under circumstances which would disentitle the drawer to sue, and that the indorsee took it without consideration, and therefore stands upon the drawer's title, the indorsee must in every such case prove consideration, but not in every case by the same mode of proof. The rule is thus explained by Lord Denman, C. J., in delivering the judgment of the Court in Bingham v. Stanley (a): "The issue in this case was in its terms plainly affirmative on the part of the plaintiff, and the onus therefore lay on him. So it would if the plea had been, that the bill was accepted for the accommodation of the drawer and indorsed by him to the plaintiff without consideration, and the plaintiff had replied that he gave consideration. The difference between the two cases is, not as to the onus of proving the issue; in both it is on the plaintiff: the difference is as to the mode of proving the issue, and as to what will be treated as sufficient proof by the plaintiff. And in this respect the rule remains as it was when the general issue was pleaded. In the case of an accommodation bill, the production of the bill is suf (a) 2 Q. B. 117. 1851. HARVEY V. TOWERS. 1851. HARVEY v. TOWERS. ficient primâ facie proof by the plaintiff; in the case of an illegal bill, or one on which suspicion of fraud is cast, the plaintiff must go farther. Under the general issue, that illegality or that suspicion was shewn by evidence on the part of the defendant; now it is shewn by the defendant's allegations in his plea, if not denied by the plaintiff.” [Alderson, B.-The proposition there stated that the affirmative of the issue determines the burthen of proof, is not correct. When a negative averment is necessary to render a pleading good, the onus of proving that averment is on the party making it. The right principle is laid down in Bailey v. Bidwell (a). The fact that a bill of exchange was obtained by fraud or illegality may reasonably raise the inference that it passed to the holder without consideration, and so change the burthen of proof.-Crompton referred to Smith v. Braine (b).] The existence of fraud or illegality sufficient to shift the burthen of proof is a preliminary question of fact, which must be determined by the Judge and not by the jury. As a general rule, whenever the admissibility of evidence for the proof of any fact depends upon a preliminary fact, the question whether such fact is proved must be determined by the Judge. Thus, where a bill of exchange was objected to as inadmissible in evidence, on the ground that, though dated abroad, it was in truth an inland bill, and if so not properly stamped, it was held to be the duty of the Judge to decide, upon the evidence, where the bill was drawn: Bartlett v. Smith (c). The proceedings in actions for defamation are analogous to this The mode of proof of malice depends on the nature of the occasion of publication; if unprivileged, the fact of publication is evidence of malice; if privileged, express malice must be proved. Where the defence is, that the publication was on a lawful occasion and without malice, the mode of proof of the latter fact depends upon the proof of case. (a) 13 M. & W. 73. (b) 20 L. J., Q. B., 201. (c) 11 M. & W. 483. the former, viz., the lawfulness of the occasion; and that the Judge must determine. In Coxhead v. Richards (a), Cresswell, J., asks, "Is not the rule this-whether the occasion is such as to rebut the inference of malice if the publication is bonâ fide, is a question of law for the Judge; whether the bona fides existed is a question of fact for the jury?" Here the plaintiff was not bound to prove consideration unless the defendant shewed that the bill was obtained by fraud: Byles on Bills, 94; Mills v. Barber (b); and the sufficiency of the proof was a question for the Judge. Bingham v. Stanley was recognised in Carter v. James (c).—Secondly. It is not now open to the defendant to question the decision of the Judge as to the proof of fraud, since the rule was not moved on that ground.Thirdly. Assuming that the question of fraud was one to be determined by the jury, their finding was against the evidence, and therefore there ought to be a new trial: Attwood v. Small (d).-Fourthly. If the Judge was wrong, there ought to be a new trial as for a misdirection; for in consequence of his ruling that no proof of consideration was necessary, the plaintiff was prevented from offering evidence of it. It is like those cases where, in consequence of the ruling of a Judge in favour of one party, he is prevented from tendering a bill of exceptions. Wilkins, Serjt., and Crompton appeared to support the rule, but were not called upon. POLLOCK, C. B.-The rule must be absolute to enter a nonsuit. This is an action on a bill of exchange, with a plea of fraud, which, according to the ordinary course of pleading, contains an allegation, not merely that the bill (a) 2 C. B. 584. (c) 13 M. & W. 137. 1851. HARVEY V. TOWERS. 1851. HARVEY v. TOWERS. was obtained by fraud, but also that the plaintiff gave no value for it. In point of law, the latter allegation is necessary to make the plea good; for, notwithstanding the bill may have been concocted by fraud, or stolen, or the party may have been swindled out of it, that is no defence, unless the holder obtained it without value. At the trial, my Brother Martin ruled, that proof of fraud did not cast upon the plaintiff the burden of proving consideration; but he took the opinion of the jury as to the existence of fraud, and reserved leave to the defendant to move to enter a verdict on those pleas, if the Court should be of opinion that the onus of proving consideration was thrown on the plaintiff; or, if the plaintiff preferred it, a nonsuit was to be entered. A motion was made on behalf of the defendant to enter a nonsuit. Several matters were urged in argument, to which it is unnecessary to advert. The material question is, whether, when a plea of fraud is proved, does that call upon the holder of the bill to prove that he gave value for it? As a general question of law, that was established long ago, when a defendant was not embarrassed by the rules of pleading. At one time, some Judges thought that if a bill was shewn to be an accommodation bill, especially if the plaintiff had notice of it, that cast on him the burthen of proving consideration. I agree with what my Lord Campbell said in Smith v. Braine, that no principle can be extracted from the cases on this subject before the New Rules. But it is now settled, that if a bill be founded in illegality or fraud, or has been the subject of felony or fraud, upon that being proved the holder is compelled to shew that he gave value for it. That was established in Bailey v. Bidwell, and subsequently, by the Court of Queen's Bench, in Smith v. Braine, in a considered judgment. It has been contended that, as a matter of pleading, that view cannot be supported. I think, however, that as a plea must contain everything necessary |