for the person who is guilty of illegality or fraud, and knows that he cannot sue himself, is likely to hand over the instrument to some other person to sue for him. It is not properly that the burthen of proof as to there being consideration is shifted, but that the defendant, on whom the burthen of proof that there was no consideration lies, has by proving fraud or illegality in the former holder raised a primâ facie presumption that the plaintiff is agent for that holder, and has therefore, unless that presumption be rebutted, proved that there was no consideration. But no such presumption arises where there was in the former holder a mere want of consideration, without any illegality or fraud. The question therefore comes to be whether this note was given for a consideration merely equivalent to no consideration, or whether the note was given in an illegal transaction. I am of opinion that the note did not take its inception in illegality within the meaning of the rule. The note was given to secure payment of a wagering contract, which, even before stat. 8 & 9 Vict. c. 109, the law would not enforce; but it was not illegal; there is no penalty attached to such a wager; it is not in violation of any statute nor of the common law, but is simply void, so that the consideration was not an illegal consideration, but equivalent in law to no consideration at all. Though it is said in Atherfold v. Beard, 2 T. R. 610, that a wager as to the amount of hop duty is contrary to public policy, it is not there meant that it was punishable, but merely that it was an idle wager on a matter in which the parties had no concern, and the *discussion of which might prejudice others, like the wager on the sex of the Chevalier D'Eon, (a) and therefore was a wager [*246 not enforceable by law, though not a breach of any law. The note then being given, not on an illegal consideration, but merely on a void consideration, the presumption which the plaintiff would be called upon to rebut did not arise; and consequently what my brother Coleridge said to the jury was accurate.

66

ERLE, J.-Taking the whole writing on the paper together, the instrument is self-contradictory. In the ordinary place for the date is put Jan. 1, 1854;" but on the face of the written instrument is put a statement that it was "Due the 4 March 1855," which could not be unless its date was January 1, 1855. It was for the Judge to construe that instrument; and, taking it altogether, I think he was right in construing it as purporting to be dated on 1st January, 1855.

Then was the Judge right in telling the jury that the burthen of proving that there was no consideration lay upon the defendant? It is clear that the general rule of law is that, when a party to a negotiable instrument pleads a plea excusing him from the fulfilment of the duty of paying according to the tenor of the instrument, the burthen of proving the plea lies on him. It is also clear that, when the plea alleges that the instrument had its inception in illegality or fraud, and

(a) See Da Costa v. Jones, 2 Cowp. 729.

that the plaintiff took it without value, proof that the instrument had its inception in illegality or fraud raises a presumption that the plaintiff took it without value; and so far shifts the burthen of proof that, unless the defendant gives satisfactory evidence that there was consideration *for the instrument, the allegation in the plea that *247] there was no consideration will be taken to be proved. The question in the present case is whether this note was brought within the category of notes tainted with illegality within the meaning of the rule. I am of opinion that it was not. I think that the defendant might, without violating any law, make a wager. If he lost he might, without violating any law, pay what he had lost, or give a note for the I am of opinion, therefore, that the proof in this case had the same legal effect as if it had been proved that the defendant made Needham a present of this note. It is not as if the note had been given for an illegal consideration, or a fraudulent consideration; but the defendant is in the predicament of a person who voluntarily, as far as law is concerned, gives a negotiable instrument. That being so the presumption did not arise; and my brother Coleridge was quite accurate if he did say that the burthen of proving that there was consideration was not cast upon the plaintiff. On the facts, it appears that, if the burthen had been cast upon the plaintiff, he did prove consideration in a most satisfactory manner; but that is not material.

amount.

COLERIDGE, J.-I perfectly concur in what has been said about the supposed misdirection. On the other point, I am rejoiced that my brothers have been able to find a satisfactory manner of disposing of a merely technical objection, having no foundation on the merits.

(CROMPTON, J., had left the Court before the conclusion of the argument.) Rule discharged.

248] *The ROYAL BRITISH BANK v. TURQUAND. June 2. Plaintiff declared against defendants, a joint stock Company, completely registered under stat. 7 & 8 Vict. c. 110, on a bond signed by two directors, under the seal of the Company, whereby the Company acknowledged themselves to be bound to plaintiff in 2000. The plea set out the condition, which appeared to be for securing to the plaintiff, who was a banker, such sum as the Company should, to the amount of 10007., owe to plaintiff on the balance of the account current, from time to time, and for indemnifying plaintiff to that amount from losses incurred by reason of the account between plaintiff and defendant. The plea further set out clauses of the registered deed of settlement, by which it appeared that the directors were authorized, under certain circumstances, to give bills, notes, bonds, or mortgages and one clause provided that the directors might borrow on bond such sums as should, from time to time, by a general resolution of the Company be authorized to be borrowed. The plea averred that there had been no such resolution authorizing the making of the bond. The replication set out the deed of settlement further, by which it appeared that the Company was formed for the purpose of carrying on mining operations and forming a railway. (It also set out a general resolution which, as suggested, authorized the making of the bond.) On demurrers to the plea and replication, held: that plaintiff was entitled to judgment, the defendants admitting on the record that the bond was the deed of the Company, and no illegality appearing: the opening such an account with a bank being presumably within the

authority of the directors, and for the benefit of the Company; and it not being shown that the obligee knew of any excess of authority, if there was any, or of any prejudice done to the shareholders, and no such prejudice being shown in fact. (And this, whether or not the resolution set out in the replication authorized the making of the bond.)

THE plaintiffs declared against the defendant, as official manager of Cameron's Coalbrook, Steam, Coal and Swansea and London Railway Company, according to The Joint Stock Companies Winding-up Acts (the Company being completely registered under stat. 7 & 8 Vict. c. 110). The declaration alleged that the Company, before defendant became official manager, to wit, on 6th March, 1850, by their writing obligatory, sealed with their common seal, acknowledged themselves to be held and firmly bound to plaintiffs in 2000l., to be paid to plaintiffs on request; for which payment the said last-mentioned Company did bind themselves and their successors: yet the said sum, or any part thereof, has not been paid.

Plea (1). That the writing obligatory in the count *contained [*249 was made subject to, and upon the terms of, a condition and agreement thereunder written in the words following, that is to say: "Now the condition of the above written bond or obligation is such that, if the said Company, or any member or members thereof, do and shall well and truly pay or reimburse, or cause to be paid or reimbursed, unto the said Royal British Bank, their successors or assigns, all and every such sum and sums of money (subject to such limitation of amount as hereinafter mentioned) as may at any time hereafter, and from time to time, be owing by the said Company to the said Royal British Bank, their successors or assigns, on the balance of the said account current, and also any sum or sums of money (subject to such limitation as hereinafter mentioned) which the said Bank may have advanced, or may hereafter advance, or which the said Bank have or may hereafter become engaged for on account of the said Company, either solely or jointly with others, in or by any bill of exchange drawn, accepted, endorsed, or negotiated, or any promissory note drawn, endorsed, or negotiated by any of the directors of the said Company on behalf of such Company, or for the payment of which the said Company shall have any way become responsible, either solely or jointly with others, or in or by any bond, contract, letter of credit, guarantee or other obligation, or in any other way whatsoever, and also any loss or expense (subject to such limitation of amount as hereinafter mentioned) which the said Bank may sustain or incur by or through their banking transactions with the said Company, any and every such repayment or reimbursement, to be made whensoever the same may be demanded by or on behalf of the said Royal British Bank, their successors or assigns (such demand to be made either personally or by letter, sent *by [*250 post to the office of the said Company," "or last known place of business)," "with interest at the rate of 21. per centum per annum, or at such higher rate as the said Bank may for the time being charge or

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may fix, either by advertisement in the newspapers, or by notice exhibited at some conspicuous place in the public office of their said Bank at," &c., "or may otherwise stipulate to be paid by the said Company, on all such moneys from the several times when the same respectively shall have been advanced or have fallen due, and thenceforth until the repayment thereof respectively, together with such commission and other charges on the amount of the said credit, or the transactions in the said account, as the said Bank may usually charge on such credits, then the above written obligation shall be void, otherwise to remain in force." "And it is hereby declared and agreed that the said Royal British Bank shall be at liberty, or either of them, to give time or credit to, and to take collateral further and other security from, the said Company, and to alter, vary, change, and release the same, and, from time to time, to give time for the payment of any bill or bills of exchange, promissory note or promissory notes, or other security or securities, or any debt or debts, sum or sums of money to the said Company, and to any other party or parties liable thereon or thereto, and to renew the same respectively, from time to time, as the said Royal British Bank, their successors or assigns, shall in their discretion think fit, without in any manner affecting, restricting, or prejudicing the liability of the said Company upon the above written bond or obligation; and that it is the intention of the said Company, in entering into the above written bond, that the same shall and may be a continuing as well as a present security to the said Royal British Bank, their successors or *assigns, to the extent of, but not

*251] beyond, the amount of 1000l. principal money, including the

commission charged by the said Bank on the said credit, notwithstanding any settlement of account or other matter or thing whatsoever. And it is agreed that, for the purpose of the aforesaid account between the said Company and the said Bank, and the credit to be given to the former, all checks to be drawn on the said Bank on behalf of the said Company shall be signed by two of the directors for the time being of the said Company, and countersigned by the secretary of the said Company."

Averment that, by the deed of settlement of the Company, duly registered, the following provisions were made, as by the said Act is required, for determining whether the said Company may borrow money, and, if so, whether on bond or mortgage, or any other and what security, and for determining whether the directors may contract debts in conducting the affairs of the said Company; and, if so, whether to any definite extent, that is to say, &c. Numerous clauses were then set out; of which the following only appear to be material.

49. That such of the directors or officers of the Company only as the directors shall, by any resolution or minute to be entered in their book of proceedings, authorize in that behalf shall have power to sign,

draw, endorse, accept, and countersign bills of exchange, promissory notes, and other negotiable securities in the name or on account of the Company, or to receive and give receipts or discharges for money paid to or for the use of the Company: provided that no such bill, note, or other negotiable security shall in any case be drawn, endorsed, or accepted for or in respect of any other object than the satisfaction of a debt actually due and owing to *or by the Company, or which will have become due and owing at the time when such bill, note, or other negotiable security shall fall due."

[*252 "50. That the board of directors may borrow on mortgage, bond, or bill in the name of, and if necessary under the common seal of, the Company such sum or sums of money as shall from time to time, by a resolution passed at a general meeting of the Company, be authorized to be borrowed: provided that the total amount of the sum or sums of money so borrowed shall not at any time exceed two-thirds of the total amount of the instalments on the capital of the Company paid up or called for, and actually due and payable at the time of, the passing of such resolution."

81 provided that the directors should cause all purchases on behalf of the Company to be made for ready money, so far as the same might be practicable.

84. That all the various payments to which the funds or property of the Company shall from time to time be subject shall be made by the order or resolution of the board of directors, save and except that, if, in the interval between any meeting of the board of directors, there shall be any necessity for the payment of any money by the Company, such payment, not exceeding 501. in any one week, may be made out of the funds or property of the Company by the manager or managers without a previous resolution of the board of directors to that effect." Averment: "That no resolution of any general meeting of the said Company was at any time passed authorizing the making of the said writing obligatory; and that the same was given and made without the authority or consent of the shareholders of the said Company." Demurrer. Joinder.

*Plaintiffs also replied to the same plea. The replication set [*253 out the bond and condition in full. The bond, as set out, was signed by two directors, James Smallbone and John Barham, and countersigned by E. C. Howden, Secretary.

The replication also set out the recital, and numerous additional clauses, of the deed of settlement. The recital was to the effect that it had been determined that a joint stock company should be incorporated by the name, &c.; the capital to be 200,000l., to be subscribed for in 20,000 shares of 101. each, with liberty to increase the capital in the manner after provided: And that the first object of the Company should be to carry on the working of the mines and collieries comprised