43. A bill which, after delivery by 49. So upon a sale of pictures, inadedrawer to payee, is post dated five days quacy of price cannot be given in eviat acceptor's request, is void. Walton dence against the amount of the note v. Hastings, 1 Stark. 215. Ellenbo- given, unless it be offered as proof of rough, C. J. 1816.

B. CONSIDERATION.

B. (a) Sufficient.

fraud, with a view to defeat the contract altogether. Solomon v. Turner, bart. 1 Stark. 51. Ellenborough, C. J. 1815.

50. A cross acceptance with an exchange of securities, is a good consideration for a note. Kent v. Lowen, 1 Campb. 179, n. Ellenborough, C. J. 44. Where there was originally no 1808. consideration for part of the sum ex- And see Buckler v. Buttivant, 3 East, pressed in the bill, the jury, in an 72. S. C. Co. B. L. 178, 510. Franco action between the immediate parties, v. Dubois, 2 Smith, 36. Ex parte may apportion the damages, although Walker, 4 Ves. 373. S. C. Co. B. L. money be paid into court on the count 174. Bayley, 205. upon the bill. Barber v. Backhouse and 51. A. being indebted to B. it is others, Peake, 91. Kenyon, C. J. 1800. agreed that C. shall draw a bill upon A. N. But where part of the considera-in favour of B. for the amount. In an tion arises out of an illegal contract, the action by B. against C. the latter cannot security is void for the whole, and the set up want of consideration as a deplaintiff must resort to his original fence. Scott and others v. Lifford, 1 remedy, upon the valid branch of the Campb. 246. Ellenborough, C. J. consideration, per Denison, J. 2 Burr. 1808.

1082.

And see Anon. 1 Com. Rep. 43. 45. Where the defendant accepts a 52. A. the drawer and payee of a bill bill in consideration of his being admit-for £50, being bound to provide for a ted into partnership by the plaintiff, bill of £70, of which B. is the holder, and the treaty is afterwards broken off indorses the £50 bill to B. to enable him by the defendant, the plaintiff can reco- to take up the bill for £70, this is an ver only to the extent of the injury available security in the hands of B. in which he has sustained by the non-per-reduction of his demand on A. and he formance of the contract. Ledger v. may recover upon it against the accepEwer, Peake, 216. Kenyon, C. J. tor. Walsh v. Tyler, 2 Stark. 288. 1794. Ellenborough, C. J. 1817.

46. And if it appear that the plaintiff obtained the acceptance by fraud, the defendant will be entitled to a verdict. Ibid.

Acc. Lewis v. Cosgrave, 2 Taunt. 2, 4, post, § 53.

47. But where a bill was given for the price of goods, it is no defence that the goods were of bad quality and improperly packed; the defendant must. have recourse to a cross action; the distinction being between failure of consideration, and original want of consideration. Tye v. Gwynne, 2 Campb. 346. Ellenborough, C. J. 1809.

48. So where a bill accepted as a gift to the payee, is indorsed for a small consideration, the indorsee can recover only to that extent. Nash v. Brown, Chitty on Bills, 93. Ellenborough,

C. J. 1817.

53. It is no defence to an action by the drawer and payee of a bill against the acceptor, that the consideration has partially failed on account of the badness of the quality of the goods delivered. Morgan v. Richardson, 1 Campb. 40, n. Ellenborough, C. J.

S. C. Law Journal, 2 vol. 237. S. C. 7 East, 483, n. S. C. 3 Smith, 487, n. And see Selw. 161, n.

51. So where a bill is given upon an agreement for the lease of a house, and the defendant has had possession, he cannot set up a refusal on the part of the plaintiff to execute the lease, but must have recourse to a cross action or suit in equity. Moggridge v. Jones, 3 Campb. 38. Ellenborough, C. J. 1811. And the court of K. B. refused a rule for a new trial. Ibid. and 14 East,

486.

may maintain an action on Sugar v. Brinkworth, 4

53. But where the partial failure of ant's goods, consideration arises from the fraud of the note. the plaintiff, it is a bar to the action. Campb. 46. Ellenborough, C. J. 1814. Fleming v. Simpson, 1 Campb. 40, n. Ellenborough, C. J. 1806.

S. P. Lewis v. Cosgrave, 2 Taunt. 2. And see ante B. (a); 46 post, VENDOR and PURCHASER.

B. (b) Legal.

54. In an action by the indorsee against the maker of a note, the latter cannot set up as a defence, that the consideration was illegal, unless it can be shewn, that the plaintiff was privy to the illegal transaction. Newby v. Smith, 2 Esp. 539, n. Kenyon, C. J. 1788. And see Chitty on bills, 5th edition, 95, 98, 103, &c.

60. A bill given for the amount of differences upon stock-jobbing transactions, is void in the hands of an indorsee, with notice. Steers v. Lashley, 1 Esp. 166. Kenyon, C. J. 1794.

And the court of K. B. discharged a rule for a new trial. Ibid and 6 T. R. 61.

62. Or if indorsed for value after it is Brown v. Turner, 2 Esp. 631. Kenyon, C. J. 1798.

due.

And the court of K. B. refused a rule for a new trial. Ibid.

64. It is no objection to the validity of a bill, that it is accepted by the defendant for the amount of small quantities of spirits sold to him by the plaintiff, though the plaintiff is disabled by 24 Geo. 2. cap. 40. s. 12. from suing upon the original demand. Spencer v. Smith, 3 Campb. 9. Ellenborough, C. J. 1811.

55. A person who indorses a bill as a surety, and is compelled to pay the amount to a bona fide indorsee, has an action over against the person, at whose request he became a party to the bill, notwithstanding he had notice that it was drawn upon an illegal considera-payee, upon an usurious agreement to tion. Seddons v. Stratford, Peake, 215. Kenyon, C. J. 1794.

65. A valid bill is indorsed by A. the

B. who indorses for a good consideration to C.-C. indorses to B.'s assignees in payment of a debt due to the estate. The assignees have a good title under C. Parr v. Eliason et alt. 3 Esp. 210. Kenyon, C. J. 1800.

Acc. Petrie v. Hannay, 3 T. R. 418, 24. Tenant v. Elliott, 1 Bos. and Pul. 3. Sed vide Aubert v. Maze, 2 Bos. and Pul. 371. Webb v. Brooke, 3 Taunt. 8. 56. In an action by the indorsee of a And the court of K. B. discharged note against the maker, a fraudulent or a rule for setting aside a nonsuit in illegal contract between the defendant trover against the assignees. Ibid. and and the payee, to which the plaintiff 1 East, 92. was not privy, is no defence. Strongi- 67. Where a note is not absolutely tharm v. Lukin, 1 Esp. 389. Kenyon, void, but merely voidable as issuing out C. J. 1795. of a contract, which is malum prohibi

57. Nor can a smuggling considera- tum, a subsequent note given in consition between the drawer and acceptor, deration of the abandonment of proceedbe set up as a defence to an action, by ings upon the former, is valid. Witham the payee. Potter v. Tubbs, Esp. v. Lee, 4 Esp. 264. Ellenborough, C. J. D. N. P. 57. Buller, J. Sarum, 1785.1803. 58. A note given for compounding a Sed vide Aubert v. Maze, 2 Bos. and misdemeanor, was held good. Drage v. Pul. 375. Sedgwick on Bla. Com. Ibberson, 2 Esp. 643. Kenyon, Č. J. 54.

1798.

68. A. the bond fide holder of a bill, Cont. Collins v. Blantern, 2 Wils. 341. on which B. the payee, had forged the Edgcombe v. Rodd, 5 East, 294. S. C. acceptance of C. gave it up to B. upon a 1 Smith, 515. Beeley v. Wingfield, 11 statement of the circumstances, and reEast, 46. And see ante, BANKRUPT, 181. ceived from him a bill accepted by D. 59. An excise officer, who, without without consideration. Held, that A. previous authority, takes a promissory might recover against D. unless a barnote for the amount of a penalty, which gaining to stifle a prosecution for the he was directed to levy on the defend-forgery, could be proved. Wallace v.

Hardacre, 1 Campb. 45. Ellenborough, B. (d) When affected or extinguished by C, J. 1807.

And see post, 73; ante, AGREEMENT B. BANKRUPT 181.

bill.

76. Vendee of goods delivers to the

69. A note given by a British subject vendor an order upon his bankers, dito a neutral, for goods purchased, while recting them to give the vendor a bill both parties are in the enemy's coun- upon London for the amount. The tries, may be sued on here. Houriet vendor takes the banker's draft, which and another v. Morris, 3 Campb. 303. is dishonoured. He cannot resort to the Ellenborough, C. J. 1812. original demand for goods sold; as upon And see post, INSURANCE, B. (b) accepting the order it became incum70. A bill drawn in favour of an bent on him to take care that he had alien enemy, is a sufficient consideration good bills. Bolton v. Reichard, 1 Esp. for a promise made in time of peace, to 106. Kenyon, C. J. 1794. pay principal and interest. Dahammel, Administrator of La Tailleur, v. Pickering, 2 Stark. 90. Ellenborough, C. J. 1817.

And see 34 Geo. III. chap. 9. sect. 2. Antoine v. Morshead, 6 Taunt. 237.

And the court of K. B. gave judgment for the defendant upon a case reserved. 6 T. R. 139.

And see Brown v. Kewley, 2 Bos. and Pul. 518.

77. A party who has given a bill of 71. It is not an illegal consideration exchange for the amount of a tradesthat a note was given by surety, for man's bill, is estopped from disputing goods sold by assignee to his bankrupt. the reasonableness of the charges. Knox Ranson v. Walker, 1 Stark. 361. Ellen- v. Whalley, 1 Esp. 159. Kenyon, C. J. borough, C. J. 1816.

1794.

72. A bill accepted for a sum paid 78. Where a note is indorsed in payby plaintiff, as guarantee of payment ment of a debt, the indorsee cannot sue in full, to one B., a creditor of defend-upon the original cause of action, until ant, to induce B. to join in a deed the note is dishonoured. Stedman v. of composition, for 10s. in the pound, Gooch, 1 Esp. 4. Kenyon, C. J. 1793. in favour of defendant, is bad. Bryant 79. But if the maker has no effects in v. Christie, 1 Stark. 329. Ellen- the hands of the party, at whose house borough, C. J. 1816. the note purports to be payable, the holder may resort immediately to his original demand. Ibid.

73. A bill given by a friend of a discharged insolvent, in compromise to a creditor, and for costs, with consent of 80. Where a note is void for want of plaintiff, that an indictment against the a stamp, the plaintiff may go into eviinsolvent for fraud should be quashed, dence of the consideration. Wilson v. is valid, in the absence of evidence to Kennedy, 1 Esp. 245. Kenyon, C. J. shew the compounding of the prosecu-1794. tion to have been part of the agreement. Harding and others v. Cooper, 1 Stark. 467. Ellenborough, C. J. 1816.

B. (c) Fraudulent.

S. P. Tyle v. Jones, 1 East, 58, n. And see Puckford v. Maxwell, 6 T. R. 52. Alves v. Hodgson, 7 T. R. 241. White v. Wilson, 2 Bos. and Pul. 118.

81. A cheque received for stock sold, 74. One of three persons who are en- is lost by the seller in his way home. gaged in a limited partnership, cannot The defendant, the purchaser, refuses bind the others by accepting a bill drawn to pay again for the stock unless he is upon the firm, for a debt due from him- indemnified against his liability on the self individually. Williams v. Thomas, cheque. Four months afterwards, the Hunter, and Latham, 6 Esp. 18. El-bankers on whom the cheque was drawn, lenborough, C. J. 1806.

75. And such an acceptance being fraudulent in its inception, would not be available in the hands of a bona fide indorsee. Ibid.

Cont. Ridley v. Taylor, 13 East, 182.

become bankrupts, having sufficient money of the defendant's in their hands to answer it. The defendant proves the amount of the cheque under the commission. Held, that an action would not lie for the price of the stock. Bevan v.

Hill, 2 Campb. 381.
C. J. 1810.

Ellenborough,

88. A bill was indorsed by the drawer, Pay the contents to E. P., being part 82. An acceptor agrees to pay costs," of the consideration money in a certain renew the bill, and give a warrant of" indenture of assignment, executed by attorney. The bill is renewed, and the" the said E. P. to R. R. R. and myself." warrant of attorney is given, but the The expression of the consideration of costs are not paid. The demand on the the indorsement is mere surplusage, and bill is not merged in the warrant of at- cannot restrain the negotiability of the torney, no judgment having been en- bill. Potts v. Read, 6 Esp. 57. Ellentered up. Norris v. Aylett, 2 Campb. borough, C. J. 1806. 329. Ellenborough, C. J. 1809.

Acc. Haussoulier v. Hartsink, 7 T. R.

And see Drake v. Mitchell, 3 East, 733. 251.

83. And a fresh action may be commenced on the first bill, though the second be outstanding. Ibid. And see Kearslake v. Morgan, 5 T. R. 513.

C. TRANSFer.

C. (a) How made.

Secus, where a condition is expressed in the indorsement. Archer v. Bank of England, Dougl. 437; Robertson v. Kensington, 4 Taunt. 30.

89. The delivery of a bill with a blank indorsement to a firm, consisting of two persons, in satisfaction of a debt due to an insolvent, to whom the two and a third person are trustees, does not, 84. After a blank indorsement, the without indorsement to the three trusnegotiability of the bill is not affected tees, or some proof of delivery, give a by the special indorsement of a subse-right of action to the three. Machell and quent holder. Smith and others v.others v. Kinnear, 1 Stark. 499. EllenClarke, Peake, 225, and 1 Esp. 180. borough, C. J. 1816. Kenyon, C. J. 1794.

And see Peacock v. Rohdes, Dougl. 611, 33.

Sed vide ante, 85.

C. (b) By whom.

85. A blank indorsement conveys a joint right of action to as many persons 90. Bankers may pledge bills deas agree in suing on the bill, without posited with them by a customer, though proof of any joint interest. Ord and such customer be a creditor. Collins v. two others v. Portal, 3 Campb. 239. Martin et alt. 2 Esp. 520. Eyre, C. J. Ellenborough, C. J. 1812.

Sed vide post, 89. As to blank indorsement in general, see APPENDIX, II.

86. The acceptor of a bill, who pays the amount under a forged indorsement, remains liable to the supposed indorser. Smith and another, assignees of Bagnall and Stand, v. Shepperd, Sel. Cases, 243. Lord Mansfield, C. J. 1776.

S. P. Cheap v. Harley, 3 T. R. 127. 87. Where the payee indorses a bill in blank, the next holder may convert the blank indorsement into a special indorsement, by inserting above it, the words 66 pay the contents to J. S." Vincent and others v. Horlock and others, 1 Campb. 442. Ellenborough, C. J. 1808.

S. P. More v. Manning, 1 Comyn's Rep. 311, 2; S. C. 4 Vin. Abr. Blanks, 7; Edie v. East India Company, 2 Bla. Rep. 295, 7; S. C. 2 Burr. 1216, 27.

And see Snee v. Prescott. 1 Atk. 249.

1796.

And the court of C. P. discharged a rule to set aside nonsuit. Ibid. and 1 Bos. and Pul. 648.

S. P. per Eyre, C. J. in Bolton v. Puller, 1 Bos. and Pul. 546.

92. In an action by an indorsee against acceptor, an act of bankruptcy committed by the payee before indorsement, is a good defence upon the general issue. Pinkerton v. Adams and Milner, 2 Esp. 611. Kenyon, C. J. 1799.

S. P. admit: Arden v. Watkins, 3 East, 322, 3.

93. A bill payable to the order of the drawer, and accepted for his accommodation, does not pass to his assignees. Therefore an indorsement for value, after an act of bankruptcy, gives a right of action. Wallace v. Hardacre, 1 Campb. 46, 179. Ellenborough, C. J. 1808. S. P. Arden v. Watkins, 3 East, 321; Willis v. Freeman, 12 East, 656.

94. A. indorses a bill to B., to enable the hands of the party from whom he him to get it discounted by C. for a par-received it, provided the transfer was ticular purpose. Cannot retain the bill made upon a valuable consideration, and for a debt due to him from B. De- without notice of any defect of title. launey v. Mitchell, 1 Stark. 439. El-Boehm and others v. Sterling and others, lenborough, C. J. 1816. 2 Esp. 575. Kenyon, C. J. 1797.

95. Bill was delivered by defendant to two partners, bankers, and transferred to plaintiffs by one of them after bankruptcy of the other, and doubted whether they can recover? Ramsbottom v. Cator, I Stark. 228. Ellenborough, C. J. 1816.

C. (c) At what time.

96. A bill being in the hands of the drawer's banker, he settles with the acceptor, and gives a receipt in fall; he cannot, afterwards, by indorsing the bill, give a title against the acceptor. Thorogood v. Clarke, 2 Stark. 251. Ellenborough, C. J. 1817.

And the court of K. B. discharged a rule for a new trial. Ibid. and 7. T. R. 423.

And see Morris v. Lee, Bayl. 233. Charles v. Marsden, 1 Taunt. 224. Grant v. Vaughan, 3 Burr. 1516.

103. A promissory note paid and reissued before it becomes due, is available in the hands of a bona fide indorsee, without notice. Burbidge v. Manners, 3 Campb. 194. Ellenborough, C. J. 1812.

104. Secus, where it is re-issued after payment at maturity. Ibid.

And see Beck v. Robley, 1 H. B. 89, n. Bayley, 66.

105. In an action on a special accept97. If the payee of a note, after ance at a banker's, presentment at having received part of the amount from the banker's after banking hours, but the maker, indorse it over for value" no orders" given for answer, was held without notice, the indorsee is not bound a sufficient presentment, Garnett v. by such payment. Cooper v. Davies, Woodcock, 1 Stark. 475. Ellenborough, Esp. 463. Kenyon, C. J. Hereford, C. J. 1816.

1795.

And the court refused a rule for

98. Where a bill is accepted on an a new trial. Ibid. illegal transaction, (lottery insurance)

106. Aliter, if the bank had been

D. ACCEPTANCE.

the acceptor is not entitled to call upon shut. Ibid.
a remote indorsee, to shew that he gave
value for the bill, unless he became a
holder after the bill was due. Wyatt v.
Bulmer, 2 Esp. 538. Eyre, C. J. 1797.)

99. The payee of an accommodation note, cannot give a right of action against the maker, by indorsing for a valuable consideration after it is due. Tinson v. Francis, 1 Campb. 19. Ellenborough, C. J. 1807.

D. (a) What shall be.

107. A bill of exchange good in the commencement was, before the late statute, vitiated by usury, committed upon the making of an indorsement; through which the plaintiffs necessarily claimed. Lowes v. Mazzaredo and others, 1 Stark. 385. Ellenborough, C. J. 1816.

And the court set aside a nomi

Cont. Charles v. Marsden, 1 Taunt. 224. 100. Where a bill accepted on anal verdict for the plaintiffs. Ibid. smuggling transaction, is indorsed for a valuable consideration before it becomes due, the indorsee may indorse over after the bill is due. Chalmers and others v. Lanion, 1 Campb. 383. Ellenborough, C. J. and K. B. 1808..

101. A person who takes a bankers' checque nine months after the day on which it bears date, does not, from that circumstance, hold it subject to the same equities, with which it was charged in

109.There is your bill, it is all right." This is no acceptance. Powell v. Jones, 1 Esp. 17. Kenyon, C. J. 1793.

Sed vide Peach v. Kay, Bayley, 78.

110. A promise to accept a bill before it is drawn, can only be insisted on as an acceptance, by a person to whom the promise was communicated, and who took the bill on the credit of it. Miln v. Prest, 4 Campb. 393. Gibbs, C. J. 11816.