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a bill of exchange affected with usury, was in the hands of an innocent holder, who on being informed of the usury, took a fresh bill in lieu of it, drawn by one of the parties to the original usury and accepted by a third person for the accommodation of the other party, it was held that the holder could not maintain an action against the acceptor of the substituted bill. Chapman v. Black, 2 B. & A. 588. 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 some only 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. Hübner v. Richardson, M. 1819; Bayley on Bills, 409. But where several bills were given to secure several demands, some legal, and some illegal, and were none of them appropriated specifically to secure the legal demand, it was held that they could not be enforced even to the extent of the legal demand. Harrison v. Hannel, 5 Taunt. 780. 1 Marsh. 349. S. C.
Between what parties usury will avoid a bill.] Before the passing of the statute 58 Geo. 3. c. 93. it was held that usury in the concoction of a bill avoided it even in the hands of a bona file indorsee for value, and without notice. Lowe v. Waller, Dougl. 708. 736. Till the case of Lowes v. Muzzaredo, ride post, it was supposed that where a bill had been indorsed for an usurious consideration, a subsequent bona fide indorsee might sue the acceptor or drawer of such a bill. Thus, Lord Kenyon ruled, that if a note is given on an usurious consider
it would be void even in the hands of a bona fide holder, but that usury in any intermediate transaction respecting it (as in the indorsement) can never make it void in the hands of a bona fide indorsee. Daniel v. Cartony, 1 Esp. 274. The same point occurred in the case of Parr v. Eliason, 1 East, 92, and the Court of King's Bench held that the usury in the indorsement did not prevent a bona fide indorsee from recovering on the bill. But in Lowes v. Mazzaredo, 1 Stark. 385, Lord Ellenborough ruled that a person was not entitled to recover on a bill where he was obliged to claim through an indorsement which had beea vitiated with usury, and the Court of King's Bench in the same case were of opinion, that the case of Parr v. Eliason was distinguishable from this, and might be supported on other grounds, and that the indorsement was entirely avoided by the statute of usury, and could not be dismissed for one purpose and retained for another. Ibid. In the subsequent case of Chapman v. Black, 2 B. & A. 590, the authority of Lowes v.
Mazzaredo was recognised by the Court of King's Bench, and it was also recognised by the Court of Exchequer in the case of Henderson v. Benson, 8 Price, 288. But although an innocent indorsee cannot make title through an indorsement vitiated by usury, yet he may sue the party who indorsed it to him, upon the bill. See Bowyer v. Brampton, 2 Str. 1155. O'Keefe v. Dunn, 6 Taunt. 315, per Gibbs, C. J. By stat. 58 Geo. 3. c. 93. no bill of exchange or promissory note, that shall be made or drawn after the passing of this act, shall, though it may have been given for an usurious consideration, or upon an usurious contract, be void in the hands of an indorsee for valuable consideration, unless such indorsee had, at the time of discounting or paying such consideration for the same, actual notice, that such bill of exchange or promissory note had been originally given for an usurious consideration, or upon an usurious contract.
It would appear from the following decision, that the above statute applies to the case of usurious indorsements as well as to usury in the concoction of the bill. The defendant proved a usurious bargain respecting the bill, between Ford and Sampson, at the time one of them was the holder; Lord Tenterden held, that as this statute declares that the bill shall not be void in the hands of a bona fide holder for valuable consideration, it was incumbent on the plaintiff to show, and not on the defendant to disprove, that the plaintiff was such holder for valuable consideration, and that unless the plaintiff adduced such evidence the prior statute applied, and the plaintiff could not recover. Wyatt v. Campbell, 13 July, 1827, Chitty's Statutes, 121. (a) i M. & M. 80. S. C.
Illegality of consideration-gaming.] By 9 Ann. c. 14. s.1. All potes, bills, bonds, &c. or other securities or conveyances whatsoever, given, granted, drawn, or entered into, or executed, by any person or persons whatsoever, where the whole, or any part of such conveyances or securities shall be for any money or other valuable thing whatsoever, won by gaming, or playing at cards, dice, tables, tennis, bowls, or other game or games whatsoever, or by betting on the sides or hands of such as do game at any of the games aforesaid, or for the reimbursing or repaying any money, knowingly lent or advanced for such gaming or betting as aforesaid, or lent or advanced at the time and place of such play, to any person or persons so gaming or betting as aforesaid, or that shall during such play, so play, or bet, shall be utterly void. Before this statute, was held on the 16 Car. 2. c. 7. that where the loser drew a bill in favour of the winner upon the defendant, who accepted it, the bill could not be enforced by the winner. Hussey 1. Jacob, 1 Salk. 344. 12 Mod. 97. Carth. 356. S. C. Where notes given for money advanced to game with, were indorsed by the payee to an innocent indorsee for value, it was held that they could not be enforced by him against the maker. Bowyer 0. Brampton, 2 Str. 1155. But in the above case it was said that the plaintiff was not without remedy, for that he might sue the payee on his indorsement; and where a bill was accepted for a gaming debt due from the acceptor to the drawer, and the drawer indorsed it for a valuable consideration, it was held that the indorsee might sue the drawer on the bill, though neither the drawer nor any person deriving title through him could have sued the acceptor. Edwards v. Dick, 4 B. & A. 212. Benson was indebted to O'Reilly for money lost at play. Duckworth, a stranger to Benson, drew a bill to the amount of that money upon Benson, in his (Duckworth's) own favor, and after indorsing it generally, delivered it to Madden, (a person employed to raise money for Benson, and who had prevailed on Duckworth to draw the bill) and Madden delivered it to O'Reilly, who procured Benson to accept it. The action was brought by an indorsee for value against Benson, The court held the plaintiff could not recover, for that the bill was drawn for the purpose and on account of the gambling debt, and Richards c. B. said that the act of parliament could not receive the narrow construction contended for on the part of the plaintiff, that an acceptance was not within it. Henderson v. Benson, 8 Price, 281. A horse-race for less than 501. is within the statute. Goodburn v. Marley, 2 Str. 1159. So betting at a horse-race. Clayton v. Jennings, 2 W. Bl. 706. So a foot-race, Lynall v. Longbothom, 2 Wils. 36, and so as it seems, a game of cricket, Jeffreys v. Walter, 1 Wils. 220, for the statute applies to all games, whether of skill or chance; it is the playing for money that makes them unlawful. Sigel v. Jebb, 3 Stark. 1.
Notice to prove consideration.] As a consideration is in all cases presumed, the plaintiff is not supposed to come prepared to prove the consideration, and he cannot be put upon such proof without a previous notice_from the defendant to that effect. Paterson v. Hardacre, 4 Taunt. 114. Bayley, 373. 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. Nor is the notice alone sufficient to throw the burthen of proof on the plaintiff. The defendant must first cast some suspicion upon the plaintiff's title, by shewing that the bill was obtained from him by force, fraud, &c. Reynolds v. Chettle, 2 Campb. 596. King v. Milson, 2 Campb. 5. post. It was formerly ruled by Lord Ellenborough, that where notice had been given to the plaintiff to prove the consideration, it was necessary for him to go into the whole of his case in the first instance, and that he could not reserve the proof of consideration, as an answer to the defendant's case. Delauney . Mitchell, 1 Stark. 439. Humbert v. Ruding, Chitty, 312. 5th ed. 401. 7th ed. So in one case it was ruled by Best, C. J., that where notice has been given of the intention to dispute the consideration of a bill or note, and the plaintiff's counsel is apprised by the cross examination that the consideration is disputed, he must give his evidence in support of the bill in the first instance. Spooner v. Gardiner, R. & M. 86. But a different practice now prevails in both courts, and the plaintiff is allowed after the defendant has proved that he received no value, and has cast a suspicion upon the plaintiff's case, to go into full proof of the circumstances under which he holds the bill. Chitty, 512. 5th ed. 401. 7th ed. suid to be so ruled by Abbott, J. R. & M. 255. (n.) In an action by the indorsee against the acceptor of a bill
, if the defendant shews 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. & P. 606. And in order to entitle the defendant to give such evidence it is not necessary to give any notice to the plaintiff of his intention so to do. Mann v. Lent, 1 M. & M. 240.
OF THE TRANSFER OF BILLS AND NOTES.
What bills, &c. are transferable.
In cases of fraudulent preference.
By a person who has no title himself.
Before the completion, or date, of the bill.
After due, and after payment.
In general, and herein of delivery.
Of part of the money.
What bills, &c. are transferable.] A bill, or note, not containing any words rendering it transferable, as," pay to J. S. or order,” or pay to J. S. or bearer," is not capable of being transferred, so as to give the assignee a right of action against all the antecedent parties ; but where such a bill or note is indorsed, the indorsee may sue his immediate indorser upon it, since, in legal operation, the indorser becomes a new drawer, and the indorsee the payee. (See ante, p. 2.) Thus, where an ex.