BILLS OF EXCHANGE.

197

may render it necessary in all cases to insert the words;and the words alluded to may be inserted at time of trial. 19

Here we may take a concise view of the considerationon which a bill of exchange may he originally founded, orwhich may pass between the indorser and indorsee, if c. ontransfer. In this inquiry the chief points which presentthemselves as affecting- the validity of the instrument, are—

1. The want of consideration: 2. The illegality of it.—It lias been already observed, that a contract not underseal is invalid, unless founded upon good and valuable con-sideration ; that it is incumbent on plaintiff to state suchconsideration in his declaration, and to prove it on trial,before he can call for the defence of the defendant.But bills of exchange which partake in this respect of thequality of a bond, it is not held necessary for plaintiff tostate any consideration, either in his declaration, or to proveit incorrect, unless where he brings his action as bearer ofa bill which is transferrable by delivery, and then only undersuspicious circumstances: as where it has been lost,’ 0 &c.and whenever the holder has given full value for the bill, &c.the defendant will not be at liberty to show that,he hasreceived none, although the plaintiff knew that circum-stance at the time he - became the holder, unless he alsoknew that the party from whom he received it was actingfraudulently. C.J.Eyre observed, “No evidence of wantof consideration, or other ground to impeach the apparentvalue received, was ever admitted in a case between anacceptor or drawer and a third person holding the bill forvalue ; and the rule is so strict, that it will be presumedhe does hold it for value till the contrary appear. Theonus probandi lies on the defendant. If it Can be provedthat the holder gave no value for the bill, then indeed he isin privity with the first holder, and will be affected by everything which would affect that first holder. This all proceedsupon an argumentum ad hominem; it is saying you havethe title, but you shall not be heard in a court of justice,to enforce it against good faith and conscience.” “ For thepurpose of rendering bills of exchange negotiable, the rightof property in them passes with the bills. Every holderwith the bills takes the property, and his title is stampedupon the bills themselves. The property and the possessionare inseparable. This was necessary to make them nego-tiable, and in this respect they differ essentially from goods,

'» Bui. N. P. 2T5. scdiju.

*° Burr. 1516. 4Esp. Rep. 56.