Ellicott v. Martin, Love & Co. , 6 Md. 509 ( 1854 )

Mason, J.,

delivered the opinion of this court.

"Whether the action of the court below, in regard to its refusal to receive the defendants’ prayers, was in conformity with its rules upon the subject, and whether those rules were passed in Ibe due and proper exercise of the iegal functions of the court, are questions we need not decide on this appeal.

If all the defendants’ prayers had been duly submitted and considered by the court, they should not have been granted, upon the case as made by the proof.

This is an action against the acceptors of a bill of exchange, accepted for the accommodation of the drawer, and which by endorsement has passed into the hands of the plaintiffs. The plaintiffs now maintain, that the possession of the draft is prima facie evidence of consideration and title,, while the defendants insist, that they having given notice to the plaintiffs to prove the consideration of the draft in question, the onus has thereby been thrown upon them to' show affirmatively that they did give value for it.

As a general proposition it may be true, that where a plaintiff has not given value for a bill of exchange, for which no consideration had been previously obtained, he cannot recover upon it. But the question is, upon whom is the onus of proving the want of consideration in such a case thrown? The answer to this question has been given in a number of cases. In the case of Arbouin vs. Anderson, 1 Adol. & Ellis, 503, (41 Eng. C. L. Rep., 645,) Lord Denman says, “We must hold that the owner of a bill is entitled to recover upon it, if he has come by it honestly; that that fact is implied prima facie by possession/’ And in the case of Mills vs. Barber, 1 Mees. & Welsby, 425, the court say: “If a man comes into court without any suspicion of fraud, but only as the holder of an accommodation bill, it may fairly be presumed that he is a holder for value:” and it is added, “in such cases the onus probandi is cast upon the defendant.”

It is true, a contrary doctrine was at one time held, but the^: cases upon which it rested have been overruled. We may j safely say, that the law is now well settled, that evidence of ; want of consideration as between the original parties to a note or bill, will not shift the burden of proof in an action by an endorsee, nor put him to show that he is a holder for value. Otherwise, however, when the defence relied on is fraud or illegality in the inception of the paper, and not) merely that if was given or accepted for the accommodation \ of the payee or drawer. Knight vs. Pugh, 4 Watts & Sergeant, 445. Munroe vs. Cooper, 5 Pick., 412. 1 Gill, 145. Renwick vs. Williams, 2 Md. Rep., 356.

The only ground for alleging fraud in the inception of the present bill was the circumstance, that the drawer had not placed the defendants in funds or goods to meet the draft upon its maturity, as he had promised to do. We presume that in every case of an accommodation acceptance the same pledge is made, and the fact that suit is afterwards brought, is presumption that the pledge was not kept; and if such a defence be good, it would follow, that an action could rarely ever be maintained against the acceptor or maker of an accommodation paper.

The evidence of the witness Grant, is insufficient to defeat the right of the plaintiffs to recover. The prima facie case which is made in favor of the plaintiffs by the possession of the draft, cannot be rebutted, under such circumstances, by evidence that the title to the draft was in some party other than the plaintiffs. In the ease of Whiteford vs. Burckmyer & Adams, 1 Gill, 145, this court have said, that courts of justice will never inquire, where the party suing is in possession of the bill, whether the party sues for himself or as trustee for another, nor into the right of possession, unless on an allegation of mala fides. No mala fides having been alleged or proven in this case, the testimony of Grant becomes of no avail.

Although we have decided this case upon other grounds, yet we d.eejm it proper to express an opinion upon another question raised by the record, which relates to the sufficiency of the exceptions — a question frequently presented, and of considerable importance in practice, but as yet not decided by this court.

It has been supposed by some, that where the court in the progress of the trial makes several rulings, which are successively excepted to, but which are not severally signed and sealed, that notwithstanding, they should be considered and decided in the appellate court, provided the last ruling is signed and sealed ; in other words, that the whole should be considered as one continuous exception, sufficiently certified by the last signing and sealing. We cannot concur in this view of the law, but are of opinion that each distinct exception, which embraces an independent proposition of law, should be signed and sealed by the court below, before it can be regarded as a valid exception. This remark does not apply to a series of consecutive prayers offered by the counsel. In such a case the ruling of the court, in either granting, rejecting or modifying the prayers, may be regarded as a single act, and one exception, if properly taken and executed, may embrace the whole.

There are cases in the Maryland Reports, which might favor the idea, that a different practice has to some extent prevailed in this court. In all those cases we think it will be found, upon examination, that a strict compliance with the law was not insisted upon. We have been able to find no case where the practice has been expressly decided to be regular and proper, but on the contrary, wherever the question has been distinctly presented, this court has adhered to the strictness which we have herein pointed out as necessary. 2 Har. & Johns., 345. 1 Md. Rep., 13.

The same practice prevails in the Supreme Court of the United States, of requiring each exception to be signed and sealed by the court below. 9 Peters, 442, Scott vs. Lloyd. We refer to this caseto illustrate, more particularly, our meaning in reference to the signing and sealing of the different exceptions.

Judgment affirmed.