this demonstrable, because there have been only two cases since Phillips v. Garth, namely Hinckley v. Maclarens, and Elmsley v. Young, in which the question as to the construction to be put upon the words "next of kin" was raised, and in both those cases the decision of Mr. Justice Buller was followed. As to the other point, namely, the question of distribution, per capita or per stirpes, as it did not arise in Elmsley v. Young, we shall only observe that Mr. Justice Buller has been somewhat hardly dealt with, as well by the Lords Commissioners, as in other quarters. Lord Commissioner Bosanquet, for instance, says, "he believes there is no case in which such a distribution has been directed, as that made by Mr. Justice Buller in Phillips v. Garth." Now Thomas v. Hole was a case exactly in point in this respect, and Mr. Justice Buller, being a common law judge sitting for the Lord Chancellor, and finding the authorities in favour of a distribution per capita, though inconsistent with the statute, where the testator had in effect directed it, actually directed such distribution against the inclination of his own opinion; for he says "if it had pleased the Court originally to say that next of kin should take in the same manner as under the statute, I should not have objected to it, for it seems to me they should take per stirpes." Mr. Justice Buller found a rule established, and though he thought a better rule might have been originally adopted, he took the prudent course of not disturbing the rule which had been laid down and long acquiesced in. We shall conclude by referring to a short judgment of Lord Thurlow,1 which is extremely pertinent to the subject of this article, and which was pronounced upon a collateral question, namely, what construction was to be put upon the word "relations?" His lordship said the difficulty was how to construe the word "relations" but by a reference to the statute of distributions. If it was a recent matter, there might be a doubt; but he took the statute to be declaratory of the old law. "When once," he added, "a rule has been laid down, it is best to abide by it. We cannot always be speculating what would have been the best decision in the first instance."

1 Rayner v. Mowbray, 3 Bro. C. C. 234.

ART, VI.-PLEADING AND PROOF OF CONSIDERATION, IN ACTIONS ON BILLS AND NOTES.

THE introduction of the new Rules of Pleading has given rise to a good deal of controversy upon this subject, the decisions on which it may be useful to sum up in this place.

Under the old plea of non assumpsit, our readers are aware, it was competent to the defendant to give evidence of original want of consideration, and the only question was how far such evidence cast upon the holder the burden of proving that he gave value for the transfer of the bill or note to himself. But by the rules of Hilary Term, 4 Wm. IV. the plea of non assumpsit being abolished altogether in actions on bills and notes, it was provided also, that in this as well as every other species of assumpsit, all matters in confession and avoidanceamong which were given as instances, illegality of consideration, and the drawing, indorsing, accepting &c. bills or notes by way of accommodation—should be specially pleaded. And it has been recently stated by the judges, on several occasions,1 that the object of the rule was not merely to compel the defendant to plead negatively and generally the want of consideration, but affirmatively to set forth the facts from which such want of consideration would appear. "The intention,” says Lord Abinger, "of these new regulations being to give the plaintiff due notice of the real defence which is to be set up, would manifestly fail if such a general plea could be sustained; the plaintiff would be left in the same state of uncertainty in which he formerly was before these rules of pleading were introduced..... The plea of the special matter is not to be confined to the effecting the same purpose as a mere notice to prove the consideration." Accordingly, a general plea in the negative, stating that "the defendant accepted [or made] the said bill [or note] without any value or consideration for his so doing, or for his paying the amount thereof, or

2

1 Easton v. Pratchett, 1 C. M. & R. 806; 4 Tyr. 472; Lacey v. Forester, 2 C. M. & R. 59; Stoughton v. Earl of Kilmorey, ib. 72; Mills v. Oddy, ib. 103. 21 C. M. & R. 807.

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any part thereof" or "that the defendant indorsed the bill without having or receiving any value or consideration for or in respect of his said indorsement, and that he has not had any value or consideration whatever in respect of such indorsement”—has been held bad when objected to on special demurrer. If, however, the plaintiff choose to take issue upon such a plea, and the jury find against him, the plea, as it has been also decided, cannot be impeached after verdict; for the issue being so joined, both parties are necessarily at liberty to go into evidence as to the consideration for the acceptance or indorsement. It was objected to the statement "that the defendant had and received no value for his indorsement," that this was at all events insufficient, inasmuch as it did not necessarily exclude the case of a transfer of the bill by way of gift from the defendant, nor the case of a consideration not capable of tangible possession, as the forbearance to sue, or the guarantee of a third person's debt-which, it was contended, could not be regarded as a consideration "had and received by the defendant." But to the former objection it was answered, that although the indorsement by way of gift might in one sense be said to be without consideration, as it was without pecuniary consideration; yet if it could be the subject of an action, it could only be on the ground that there was, legally speaking, some consideration,-as of favour or affection, or the desire to promote the interests of another: but further, that it was at least extremely doubtful whether in fact the giver would be liable in law upon his indorsement to the party to whom he gave the security, although he would be precluded from recovering it back. 3 To the latter objection the answer of the Court was, that whatever be the nature of the consideration, whatever form it takes, if it be actually obtained, the party may, both in legal and in common language, be said to have had and received it. "If a man is to have credit, and it is given to him, it is that for which he stipulates; so, if a bill is given for forbearance, the party may be said to

1 Easton v. Pratchett; Stoughton v. Lord Kilmorey; Mills v. Oddy; Reynolds v. Ivimey, 3 D. P. C. 453.

2 Easton v. Pratchett, suprà; affirmed a few weeks ago in the Exchequer Chamber.

3 See Holliday v. Atkinson, 5 B. & C. 501.

have the consideration, because he actually possesses the benefit of that forbearance."

1

But a further question has arisen: where, on a plea pleaded in the general negative form we have been referring to, the replication merely alleges, in equally general terms, that there was a good consideration for the acceptance or indorsement, upon which the issue is joined,--on whom is the onus thrown of proving consideration in the first instance? The Court has answered in several cases,-on the defendant; for although the affirmative of the issue, in point of form, is upon the plaintiff, yet inasmuch as by the law merchant an acceptance or indorsement in itself primâ facie imports that it was given for some consideration, and the plaintiff has not tied himself down to the proof of any particular kind of consideration, the replication alleging no more than the bill itself imports, the case stands exactly as it would have done, before the new rules, on the general issue. And even where the plaintiff proceeded to state the nature of the consideration thus far, that the defendant did receive consideration for the said acceptance, to wit, two cows sold and delivered by the plaintiff to the defendant," concluding to the country,-it was held that the replication was in effect no more than a traverse of the plea; and though the plaintiff had gone on to allege under a videlicet what the consideration was, he had shown, by concluding to the country, that the words under the videlicet were introduced merely as parcel of the traverse, and not as a new matter on which issue was to be taken. If, indeed, the plaintiff is so unnecessarily communicative as to allege the kind of consideration on which he relies, in such a manner as to give the defendant an opportunity of traversing the allegation, and he avails himself of it, the plaintiff brings upon himself the burden of proving that the security was given for the precise kind of consideration which he has specified. And it has been expressly decided that a replication in the general form

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Batley v. Catterall, 1 M. & Rob. 379; Morgan v. Cresswell, K. B. Hil. T. 1835; Lacey v. Forrester, suprà.

2 Low v. Burrows, 4 Nev. & Man, 366.

above mentioned is a sufficient answer to a general plea of want of consideration, even on special demurrer. 1

The more general and important question, how far, upon an issue properly tendered and taken, the proof by the defendant of original want of consideration-in other words, the proof that the bill was an accommodation bill--casts upon the plaintiff the onus of proving that he gave value, (on which we offered some remarks in a former number, 2) must, notwithstanding the authority of the case of Heath v. Sansom,3 still be considered as involved in much uncertainty.

4

Mr. Justice Patteson, who, in that case, assented to the opinion expressed by the majority of the Court, and said that independently of the circumstances of suspicion thrown upon the plaintiff's title, on the point of practice alone he should think the defendant entitled to succeed, has since distinctly withdrawn his adhesion to that opinion; stating unequivocally that he considers the doctrine broached on that occasion as incorrect, and that the consideration of the judges having since been more specially directed to the subject, the prevalent opinion among them is, that the Courts have of late gone too far in restraining the negotiability of bills and notes. On the other hand, in a still more recent case, 5 Lord Abinger has given the strong sanction of his authority and experience to support the opposite view of the question. It was not indeed presented distinctly and necessarily for the judgment of the Court, but his lordship stated without reserve, and in considerable detail, the opinions he entertained on the subject. The plea alleged that the defendant accepted without consideration, and that the plaintiff (the indorsee) was a holder without consideration. The latter allegation was denied by the replication, which therefore admitted the former. The case was rested, for the plaintiff, directly and strongly upon the principle that the indorsement of itself imported a consideration, and that

1 Bramah v. Roberts, 1 Bing. N. C. 469; Prescott v. Levi, 3 Dowl. P. C 403; Stoughton v. Earl of Kilmorey, suprà.

2 Vol. viii. p. 122.

4 Whitaker v. Edmunds, 1 M. & Rob. 367. 5 Simpson v. Clark, Exch., Trin. T. 1835.

3 2 B. & Ad. 293.