35 Ala. 434 | Ala. | 1860
The charges given and refused by the circuit court present two questions. Those questions are, whether the endorsee of a bill of exchange, who obtains it before maturity, has the onus cast upon him of proving that he was a purchaser for value, when it is shown that there was either a want of consideration between the original parties to the bill of exchange, or a failure of consideration; and whether such endorsee has the onus cast upon him of proving that he paid a valuable consideration, when it is shown that the bill was procured by fraud.
It seems to be a doctrine of universal acceptance, in the English law, that where a bill has been procured by fraud, felony, or duress, the onus of proving the payment of value devolves upon the endorsee. — Duncan v. Scott, 1 Camp. 100; Rees v. Headfort, 2 ib. 574 ; Bailey v. Bidwell, 13 Mees. & Wels. 72; Berry v. Alderman, 5 J. Scott, 95, (14 C. B. 78 E. C.L.) 94; Byles on Bills, 88, (61 L. L.) 121; Chitty on Bills, 648. The American decisions are generally, and the decision by this court in Wallace v. Bank, 1 Ala. 565, to the same effect. — Holme v. Karsper, 5 Binney, 465; Rogers v. Morton, 12 Wend. 484; Vathier v. Zane, 6 Gratt. 247.
"Upon the point as to the effect of a want or failure of consideration between the original parties, the English authorities are not so uniform. We find it was decided
The decisions in New York, Pennsylvania and Virginia, assert the same doctrine. — Morton v. Rogers, 14 Wend. 575; Rogers v. Morton, 12 ib. 484; Holme v. Karsper, 5 Binney, 465; Knight v. Pugh, 4 Watts & Ser. 445 ; Vathier v. Zane, 6 Grattan 246; Wilson v. Lazier, 11 Grattan. 477. We do not understand thejdecision in Goodman v. Simonds, (20 Howard, 843,) as affecting the questiou in hand. The opinion in that case does not touch the question of the onus of proof in reference to the endorsement.
After this review of the law as recognized in England and in some of the other States, we come to our own decisions. This court has, as may be gathered from its decisions in Wallace v. Bank, (1 Ala. 567,) Marston v. Forward, (5 Ala. 347,) Thompson v. Armstrong, (7 Ala. 258,) and Boyd and Mason v. McIver, (11 Ala. 822,) unequivocally asserted, that fraud in putting a bill in circulation, or the want or failure of consideration, would cast upon the endorsee the burden of proving the payment of value. Neither the opinion in Pond v. Lockwood, (8 Ala. 674,) nor Minell v. Reed, (26 Ala. 780,) is in conflict with those decisions. The former of those cases discusses the question as to what are the rights of a holder for value, but does not touch the question of the onus of proof as to^tlie valuable consideration of the endorsement. The latter cáse pertains to a payment made to the payee of a note after its endorsement. It is very clear that the presumption in favor of the payment of value by the endorsee could not be affected, by anything which might transpire between the original parties to the note or bill after its endorsement.
The law upon the main points of this case has been, as we have seen, the subject of adjudication in this court
The judgment of the court below is reversed, and the cause remanded.