10 Cal. 523 | Cal. | 1858
Baldwin, J., concurring.
The question presented in this case is, whether the illegality of the consideration, for which the check was given, is available as a defence against the plaintiff. As between the parties, it is not denied that the consideration may be inquired into. As between them, the consideration was illegal. Graining is prohibited by statute; it is declared to be a felony in the keeper of the game, and a misdemeanor in the player. As to all persons except a bona fide holder without notice, the check is void. The statute so expressly declares, and such would be the rule of law independent of the statute. And there is little doubt that the check passed to the plaintiff after its dishonor by the bankers. It was given to Chapman, and was presented for payment by him—a circumstance which justifies the inference that he held it at the time as he held it originally. And if transferred after dishonor, the plaintiff took it subj.ect to all the defences to which it was subject in the hands of the first holder.
Even had it been transferred to the plaintiff before dishonor, the illegal consideration being admitted, it devolved upon him to show that he took it without notice and for value. With checks, as with promissory notes, the presumption is that they are given upon a valid consideration, but this presumption being rebutted, the necessity is thrown upon the holder of proving that he received it in good faith, without notice of the illegality of the consideration. (Story on Prom. Notes, § 196; Duncan v. Scott, 1 Campbell, 100; Rees v. Marquis of Headfort, 574; Monroe v. Cooper, 5 Pick., 413; Home v. Karsper, 5 Binney, 469.) This the plaintiff did not do, and there was no error therefore in the rendition of judgment against him.
The motion for a new trial was properly overruled. There is no excuse offered in the aiHdavit of the plaintiff for omitting to prove that he was an innocent purchaser; and there is no weight to be given to the excuse offered by the attorney, that he supposed the facts admitted would not be allowed in evidence unless followed by proof that the plaintiff received the check with notice, and was taken by surprise when the counsel of the opposite party read to the Court authority for the notice he had served, requiring the plaintiff to prove the consideration paid for the check. The surprise alleged, is only that the law was different from what the attorney supposed it to be—a state of feeling which, in numerous instances, under like circumstances, has been experienced by other counsel, but has never availed to obtain a new trial.
Judgment affirmed.
