Ellicott v. Martin, Love & Co.

Mason, J., delivered the opinion of this court. "Whether the action of the court below, in regard to its refusal to receive the defendants’ prayers, was in conformity with its rules upon the subject, and whether those rules were ⁵¹⁵ passed in Ibe due and proper exercise of the iegal functions of the court, are questions we need not decide on this appeal. If all the defendants’ prayers had been duly submitted and considered by the court, they should not have been granted, upon the case as made by the proof. This is an action against the acceptors of a bill of exchange, accepted for the accommodation of the drawer, and which by endorsement has passed into the hands of the plaintiffs.

The plaintiffs now maintain, that the possession of the draft is prima facie evidence of consideration and title,, while the defendants insist, that they having given notice to the plaintiffs to prove the consideration of the draft in question, the onus has thereby been thrown upon them to' show affirmatively that they did give value for it. As a general proposition it may be true, that where a plaintiff has not given value for a bill of exchange, for which no consideration had been previously obtained, he cannot recover upon it. But the question is, upon whom is the onus of proving the want of consideration in such a case thrown? The answer to this question has been given in a number of cases.

In the case of Arbouin vs. Anderson, 1 Adol. & Ellis, 503, (41 Eng. C. L. Rep., 645,) Lord Denman says, “We must hold that the owner of a bill is entitled to recover upon it, if he has come by it honestly; that that fact is implied prima facie by possession/’ And in the case of Mills vs. Barber, 1 Mees. & Welsby, 425, the court say: “If a man comes into court without any suspicion of fraud, but only as the holder of an accommodation bill, it may fairly be presumed that he is a holder for value:” and it is added, “in such cases the onus probandi is cast upon the defendant.” It is true, a contrary doctrine was at one time held, but the^: cases upon which it rested have been overruled. We may j safely say, that the law is now well settled, that evidence of ; want of consideration as between the original parties to a note or bill, will not shift the burden of proof in an action by an endorsee, nor put him to show that he is a holder for value. Otherwise, however, when the defence relied on is ⁵¹⁶ fraud or illegality in the inception of the paper, and not) merely that if was given or accepted for the accommodation \ of the payee or drawer.

Knight vs. Pugh, 4 Watts & Sergeant, 445. Munroe vs. Cooper, 5 Pick., 412 . 1 Gill, 145 . Renwick vs. Williams, 2 Md. Rep., 356. The only ground for alleging fraud in the inception of the present bill was the circumstance, that the drawer had not placed the defendants in funds or goods to meet the draft upon its maturity, as he had promised to do.

We presume that in every case of an accommodation acceptance the same pledge is made, and the fact that suit is afterwards brought, is presumption that the pledge was not kept; and