Court Of Common Pleas, Mo...
Before Lord Chief Justice BEST and a Sneciat J-m,. This wase an action brought by thle assignee of a bankrupt nanmed liarris, to recover the amnount of a bill of exchange for 691. drawn by a person named Bond, andl accepted by thc defendant. The de. fence was, first, that the bankrupt .Uarris was a kill broker, and as such wvas net a trader within the cperation of the bankrupt laws - it was also set up, that no consideration had been given for the bill, and a notice wasi served on the plaintiif, calling on him to prove the consileration. Evidlence was given of the tradirng of the bankrupt Harris as a bill-broker, of the act of bankruptcy, and of the petitioning creditor's dlebt. This was theplaintifs case. Mr. Sergeant O0sLow, for the delendant, here observed, that a notice laid been served upon the plasintiff, calling upon kim to prove the consideration given by the banltruptfor thebill in question, and he submitted, that the plaintiff havving omitted to give such proof, had failed in his action, and must be called. M r. Scrgeant VAUGHAN, for the plaintifr', contended, that it was not necessary for him to enter into a ny such proof, unless itappeated by evidence that hig title was impeached. The LORD CnHIEF JJ STiCE.-Thisis a point which has not been agreed upon by the judges ; but I believe it has been frequently held by Lord Ellenborsugh, and by the present Chief Justice of the King's Bench, that the claimants oni a bill of exchange were bound to give proof of consideration when called upon. DI r. Sergeant VAUGHAN.-Al.y L,ord, with great respect I submit that this Is quite nerw doctrine. The LonD CHIEF' JtUSTTcS.-Brother Vaughan, it is no such thing. It is not new doctrine; on t}e contrar , it is doctreli which has obtained from the time of Lord Manreield down to the pre. sent dlay. A1r.Sergeant VAtroGHAAr.-I apprehend not in this court,rny Lord: I have been practising in this c9urt for the last five and twentv yrars, and in that time I bhve not klnown an instance of a plaintiff being callcd upon to prove the consideration for a bill of exchange, be,g7sse a nutice to that effect had been given by defendant, urnl ss hi tle to the bill had been impeawhed. Such a doctrine, I submiit, .2,kite novel. n -$ue LOan CHIEF JUSTICE.-Really I think I have sonte rea- son to coinplain of the manner in ,ahich I am treate. I now hold in mny hands the authority on which I made my staterment. Ilr. Sergeant VAUGIA.-t(Hsnding a book to his Lordship.). Will yousr Lordship allow me to refer you to a very excellent au- thority on -'hich miy assertion it; founded ? This, my Lord, is "1Phi)]ips'e Boolt on E'vidence,"' the 2d volume. In the text of page 1B your Lordship will findA the very point now in dis- pute clearly explained. Hie says-" If the title of the pIlintiff asbholder Ia brougbt ilnto uspiclri by a witzess called upon the part of the pwlanntift he ought 10 prove the considerztion, al- thlough there has not bten a notice to thlat efect; but if no sus- picion arises upon the pliintiffls cale, he will not be obliged, even after notic to e it, unyles hig title has been impeached.t The case reerdto inr the nOtes, fron which these remarks arose, is that of ",Delaunay v. BhlitcheILl" Ne'w, niy Lord, I apprehend, that unless the law is as, it is here laid ilown, the who'le of the commirercial transations of the country would soon get into irretrievable confusion. Lord Chief Justce BEST.-4otwhijttandi.g lel this, brother 1Vaul an, I cannot help expressing my surpriae that the statement Which I made should be considered as such very sove] doctrine; atid that it s heuld b1 added, thn)t until the question is settled, the whole of the cemmercial tranisactions of the country mlust remnain in, conifusion. Alir. Sergeant VAUGHnAN..- Mly Lord, I only mesat to point out to yeoir Lordship that Lord Ollellborough held that the pilaintiff' in circurnstances like the presqent could -not bme call ed upox tc, prove the contideration. I beg, with great resPect, to repeat, that I have never known ai In stance to the contr4ry. I have never known tany Instance of the kind In this Court, nor dlo Jr believe that tbger is is the hok any .isthority for such a practice.' ok Loed Chief Justice BEST..-Thiere is, brother Vaughan, a case on' the point whichi I mnentionied, to be foundl in the last Terrm Reports. Is it dealing Nfaily towvards a Juege to have it held out that he is doin soeshlngonssrOsnndho doctr1ine never beloreheard * ~BI. Segean VA SGHAN-llI Lor, I never meant to put mny obsrvaionin ha wa; hti epet,with every respect for the Court tha I nver new n rorane in hicht a plaintiff was called upo toprve he onideatin or bil,unless, is I have i*lready obsrve, smetingtttPwlus ad pperedfrom the examination fi ne .y L ship ttentlon to te cse o" Pteron v Hadacr," n 4h Tano,in which LordChif Jsei~ Bg'r..-..ro~er augan, I shiall assu'sie soure as proved at present, giving dthe dcfendat leave to move NIr. Sergeant VAUOIL ..--MYLotd, lisballobjeet tob avnga ltung placed on the record tichi isatr all duubtl for t do rlatn aht that mt client slould be put to unnecessary expense. Liord Chief Justice BEST.-Brother Vaughapnn,seundoubtedly the poasessO n Of a bill Of dXChange is primla faeL* LVidenLce of a debt, and God forbid that it siould be otherwise* bat if a bill should be fraudlulently obtainedi of the dlefendan, 'it is quite clear that!at. some stage or other of the proceedings, the plaintiff must prove-the contsideration given for it. filr. Sergeant VAUGHAS.-MUY Lord, with g6reat respect, LAde y tnat propositiOD: it begs the whole question. With submission, . deny hat a any ime5excep unde thecircumstantces hveal ready stated, thei nplainxtican bte calledUpon to prove the s Lord Chief Justice BEST.-Btother Vaughan, let the case pro- ceed. Evidenqpe was now called for the putpose of showing that this waa an accorniodation bill, arnd that Harris had never viven anv consi- deratiorL for the bill. This wvas rebutted by evidence on ihe part of the plaintif, whlich went to show *hat Harris hiad given bank checks for the bill. arshdgvnbn Mlr. Sergeant On'sLOWV replied to the new evidence, and DMr. Sergeant V.AUGMA. was about trtreply to the whole case, when Lord Chief Justire BEST observed that it was unnecessary. He was of opinion that the trading.by ?be bankrupt was flilys' esta- blished, anid that it brought bim vwithin the operatior of thbank ruptcy laws. He also thought there WaS suffiient evidence of th proVerty of the bankrupt in the bill. ' heJury also expresed themselves satisfied on those points, and ret urne(l a verdict for the plaintiff> damages 72L, being the amount of the principal and interest since the bill became due. COURT OF COMMON PlEA.l4 krvnv. -7--ov k MALL V. DURNtER.