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The 12 Ann. stat. 2. c. 16. s. 1. by which it is enacted that all bonds, contracts, and assurances, made for payment of any principal or money lent, upon usury, shall be utterly void, has been considered as standing on the same ground as the foregoing statute of the 9th of Ann. c. 14. against gaming, and on the authority of the case of Bowyer v. Bampton, (which see infra) it has been holden that the endorsee of a bill of exchange, given for an usurious consideration, cannot maintain an action upon it against the acceptor, although he (the endorsee) has given a valuable consideration for the bill, and is not affected with notice of the usury (15). d Lowe and others v. Waller, Doug. 537.

should appear, that the money was lent by the plaintiff to the defendant, for the purpose of gaming with him, (Barjeau v. Walmesley, Str. 1249. per Lee C. J.) or to pay a bet, at a horse race (Alcinbrook v. Hall, 2 Wils. 309.) or at the time and place of play (Robinson v. Bland, 2 Burr. 1077. Wettenhall v. Wood, 1 Esp. N. P. C. 18. S. P. per Kenyon C. J.) It is to be observed, that although there is not any substantive clause in the stat. 9 Ann. c. 14. which avoids the contract, yet the 2nd sect. of that stat. gives the loser a power to recover back money or goods, of the value of £10 lost at any unlawful game, by action brought within 3 months; but after the expiration of the 3 months the loser cannot recover such goods or money from the winner, although the winner can shew no title to them except what arises from having won them. Vaughan v. Whitcomb, 2 N. R. 413.

(15) Wilmot J. seems to have anticipated this decision in an opinion delivered by him as one of the judges appointed by a special Commission of Errors, to inspect the judgment of the Sheriff's Court, in the case of Harrison against Evans, and the affirmance thereof in the Court of Hustings, at the Guildhall of the city of London, on the 5th of July, 1762; his words are these, "It was said that the law against gaming makes notes void to all intents and purposes,' and the act against usury only makes them 'void,' and that a gaming note in the hands of an innocent endorsee would be void against the drawer, but it would not be so in the case of a note given upon an usurious contract; and it was determined in the case of a gaming note, that it would be void in the hands of an endorsee; but if that case is right, which was then thought a hard one, I think the law must be the same upon an usurious note; and no case was cited, either before or since the case upon the gaming note, to establish such a distinction; and I am sure I can find out none in the intention of the legislature between void,' and 'void to all intents and purposes.' It is only an ampliation of expression, and spreading out the same idea a little more diffusively; but they both equally mean, that the act done shall be considered as if it was not done." See Notes of opinions, &c. by Wilmot C. J.,p. 146,7.

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It is to be observed, however, that the foregoing statute applies to those cases only where the bill is originally given for an usurious consideration; for if the bill is fair and legal in its inception, an endorsement by the payee for an usurious consideration will not avoid it in the hands of a subsequent bona fide holder; but if a bill is drawn upon an agreement between one of the original parties to it, and a person not a party to it', that the latter shall get it discounted by another person likewise not a party to the bill, upon usurious terms, and it is so discounted accordingly, the bill is void for the usury, in the hands of an innocent endorsee; and in such case the bill is void, although the drawer, to whose order it is payable, be not privy to the usurious agreement.

Where a party is compelled to take goods in discounting a bill of exchange, a presumption arises that the transaction is usurious; and to rebut this presumption, evidence must be given of the value of the goods by the person who has supplied the goods and sues on the bill. But where in discounting a bill a proposal is made that goods shall be taken, although such proposal originate with the plaintiff, yet if the other party readily accedes to it, conceiving that he shall make a profit by the transaction, the presumption is, that the goods are charged beneath their value, and it lies upon the defendant to prove the contrary, if he would impeach the plaintiff's title to the bill on the ground of usury.

In cases where the illegality of the consideration is such as does not fall within the statutes against gaming and usury, the holder cannot be affected with the transaction between the original parties, unless he either had notice, or took the bill, after it became due, from a person who had notice of the illegal consideration for which the bill was given.

The cases of Peacock v. Rhodes, Steers v. Lashley, and Brown y. Turner, will illustrate this position.

Endorsee against drawers of an inland bill of exchange The bill was drawn by the defendants apon Smith and others, payable to William Ingham or order; Ingham endorsed it to Daltry, by whom it was endorsed to Fisher, out of whose pocket it was stolen. The plaintiff received the

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bill from a stranger, calling himself William Brown, and endorsing the bill in that name to plaintiff, of whom he bought cloths and other articles in the way of plaintiff's trade. The defendants were strangers to the plaintiff, but he had before taken bills drawn by them which had been duly honoured. Plaintiff declared, as endorsee of Ingham. On a case reserved, Lord Mansfield (after argument) delivered the opinion of the court." The law is settled, that a holder coming fairly by a bill or note, has nothing to do with the transaction between the original parties, unless, perhaps, in the single case of a bill or note for money won at play (16). I do not see any difference between a note endorsed blank, and one payable to bearer. They both pass by delivery, and possession proves property, in both cases. The question of mala fides was for the consideration of the jury. The circumstances that the buyer and also the drawers were strangers to the plaintiff, and that he took the bill for goods on which he had a profit, were grounds of suspicion very fit for their consideration. But they have considered them and have found it was received in the course of trade." Postea to plaintiff.

Endorsee against acceptor of a bill of exchange drawn by one Wilson on defendant', and endorsed over by Wilson to the plaintiff after it had been accepted by defendant. At the trial before Kenyon, C. J. it appeared that defendant had engaged in several stock-jobbing transactions with different persons, in which Wilson was employed as his broker, and had paid the differences for defendant. That a dispute arising between Wilson and defendant respecting the amount of those differences, the matter was referred to plaintiff and three others, who awarded a sum of money to be due from defendant to Wilson, for part of which sum Wilson drew the bill in question. Kenyon, C. J. non-suited the plaintiff, being of opinion that as the bill grew out of a stock-jobbing transaction, which was known to the plaintiff, he could not recover upon it. A rule having been obtained to shew cause why the non-suit should not be set aside, Lord Kenyon C. J. (after argument in support of the rule) said, "If the plaintiff had lent this money to defendant to pay the

1 Steers v. Lashley, 6 T. R. 61.

(16) Bowyer v. Bampton, Str. 1155. ante p. 289. The case of Lowe v. Waller, had not been decided when Lord Mansfield delivered this opinion, otherwise he might have added here the case of a bill of exchange given for an usurious consideration.

differences, and had afterwards received the bill in question for that sum, then, according to the principle established in Petrie v. Hannay (17), 3 T. R. 418. he might have recovered; but here the bill on which this action is brought was given for those very differences, and therefore Wilson himself could not have enforced payment of it. Then the security was endorsed over to the plaintiff, he knowing of the illegality of the contract between Wilson and defendant, for he was the arbitrator to settle their accounts, and under such circumstances he cannot be permitted to recover in a court of law." Rule discharged.

Endorsee of a bill of exchange against the acceptor". The defendant employed one Pritchard, a broker, to transact some business for him in stock-jobbing in omnium, who paid the differences for him, and then drew the bill in question on the defendant for the amount of those differences, which the defendant accepted; afterwards, and after the bill became due, Pritchard endorsed the bill to the plaintiff for a prior debt. Lord Kenyon C. J. was of opinion, 1st. That omnium was one of the public stocks or securities within the statute 7 Geo. 2. (Sir John Barnard's act for preventing the infamous practice of stock-jobbing) the loan having been voted by the House of Commons, although the scrip receipts were not then in the market; and, 2dly, That the illegality of the original transaction vitiated the bill, the plaintiff having taken it after it became due, and, consequently, not being entitled to recover, if Pritchard could not (18). A verdict having been taken for

m Brown v. Turner, 7 T. R. 630.

(17) In the case of Petrie v. Hannay, it was decided, that if two persons jointly engage in a stock-jobbing transaction, and incur losses, and employ a broker to pay the differences, and one of them repay the broker, with the privity and consent of the other, the whole sum, he may recover a moiety from the other in an action for money paid to his use. But see Aubert against Maze, 2 Bos. and Pul. 373. where the authority of Petrie v. Hannay was doubted.-Eldon C. J.

(18) A party taking a bill of exchange or note after it is due, takes it subject to all the equity to which the party from whom he had it is liable. In Brown v. Davies, 3 T. R. 80. it was said by Buller J. that generally when a note is due, the party receiving it takes it on the credit of the person who gives it to him. To this position Kenyon C. J. agreed, with the addition of this circumstance, that if it appeared on the face of the note to have been dishonoured, or if knowledge could be brought home to the endorsee

defendant, an ineffectual attempt was made to set it aside, the court being clearly of opinion, on the construction of the act of parliament, and on the authority of the foregoing case of Steers v. Lashley, that the plaintiff was not entitled

to recover.

IV. Of Presentment for Acceptance-Acceptance—qualified Acceptance-Liability of the AcceptorNon-acceptance, and Notice thereof-ProtestLiability of the Drawer on Non-acceptance.

Presentment for Acceptance.-When a bill is drawn payable within a certain time after sight, it is necessary, in order to fix the time when the bill is to be paid, to present it to the drawee for acceptance. In other cases, it is not essentially necessary for the holder to present the bill before it is due; but it is advisable to procure an acceptance, if

a Chitty, 67.

that it had been so. See Mr. J. Lawrence's approbation of the foregoing rule in Boehm v. Sterling, 7 T. R. 431. In Taylor v. Mather, E. 27 Geo. 3. B. R. 3 T. R. 83. n. Buller J. said, that it had never been determined that a bill or note was not negociable after it became due, but if there were circumstances of fraud in the transaction, and it came into the hands of plaintiff by endorsement after it became due, he had always left it to the jury, upon the slightest circumstance, to presume that the endorsee was acquainted with the fraud. See also Tinson v. Francis, M. T. 48 Geo. 3. B. R. 1 Camp. N. P. C. 19, where the holder of a note had given a full consideration for a note after it became due, but was not permitted to recover in an action against the maker, the maker having proved that the note was originally made without consideration: Lord Ellenborough C. J, observing, "that after a bill or note is due, it comes disgraced to the endorsee, and it is his duty to make inquiries concerning it. If he takes it, though he gives a full consideration for it, he takes it on the credit of the endorser, and subject to all the equities with which it may be encumbered.” But if the endorser could have maintained an action on the bill, then the circumstance of the endorsement, after the bill became due, is not sufficient to let in the defence of an illegal consideration. Chalmers v. Lanion, 1 Camp. N. P. C. 383, Lord Ellenborough C. J. whose opinion was afterwards confirmed by court of B. R. Whoever takes a bill after its dishonour, takes it with all the infirmities belonging to it, Crossley v. Ham, 13 East, 498,

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