
    
      BOOKER vs. LASTRAPES & AL.
    APPEAL PROM THE COURT OP THE PXPTH JUDICIAL DISTRICT, THE JUDGE OP THE SIXTH PRESIDING.
    1. In a suit between the endorsee, who is the holder, and the drawer and endorser of a bill of exchange, the consideration may be impeached, and the question whether the drawer ever received consideration or payment therefor? enquired into.
    
      % And where from the evidence it appears doubtful whether the drawer ^ ^ yn has e receiVed the value, or any consideration therefor, the case will be remanded for a new trial.
    }s an action on a bill of exchange drawn by the firm of Lastrapes Fréreson a commercial house in New-Orleans, trading under the style and firm of Plauché' & Courcelle, in favor of Louis F. Lastrapes who endorsed it, dated, Ope-loussas, 16th September, 1828. The draft was delivered over, thus endorsed, to Alphonse Desmare, cashier pro tem. of the branch bank at Opelousas, and by him transmitted to R. L. Booker, cashier of the bank of Louisiana, in New-Orleans, and who instituted this suit.
    ' The defendants in their answer state, that on the 28th July 1828, they addressed a letter to Plauché & Courcell, requesting them to accept a draft for $1500, who replied they would. Lastrapes Freres on the 12th September, 1828, drew on Plauché & Courcelle for $1500, payable to Louis Vaiihille, four months after date. The object in drawing the draft was to have it discounted at the branch bank at Opelousas. It was deposited there for discount accord~ ingly, but without the endorsement of L. lTanhille. The defendants aver, that the draft never was discounted, and de~ ny that the bank ever gave them, or L. Vanhille to whom it was made payable, any legal or valuable consideration.
    That soon after depositir~g the draft in bank, A. Desmare superseded the old Cashier, as Cashier pro. tern, ana called on Ludger Lastrapes, one of the defendants, to get the endorsement of L. Vanhille the payee. It was then discovered by n~istake that it was drawn in favor of L. Vanhille instead of Louis F. Lastrapes, who is also made a defendant in this suit. To correct the error and put the draft in such a shape as might be discounted in bank, the draft or bill now sued, was given in lieu of it. The defendants al-ledge, that when the draft was last drawn, they had no credit in bank on account of it, nor have they ever received any consideration from the baiik, or from the plaintiff, for or on account of it. That it was drawn and deposited in bank to get discounted, but that neither the Lastrapes frères nor their co-defendant, who endorsed it, ever received any consideration for it.
    The draft was presented to Plauchè & Courcelle on the 20th of October, for acceptance, who refused. It was protested for non-acceptance and due notice alledged to have been given to the endorser.
    From the testimony of A. Desmare, it appears when he arrived to take charge of the bank at Opelousas, that the first draft drawn by Lastrapes frères, payable to Louis Vanhille, was handed over to him by Mr. Saul the old Cashier, as so much cash, and received from Saul and counted as such. Desmare then called on L. Lastrapes, one of the defendants, and informed him there was some mistake about it, as the draft was not endorsed, Lastrapes gave the one sued ,, , . , T . T , on, payable to, and endorsed by his brother Louis JLastrapes. Desmare, as the agent of the bank, does not know, nor can . . he find out, that any consideration was given for the first draft. The second bill was given for the first. That at the time of the date of this draft, Lastrapes had a regular account in bank, but it does not appear from the books of the bank, that any money was ever paid either to Las-trapes or Yanhille for the said draft, nor that they had any credit for it on the bank books.
    
      Western District.
    September, 1830.
    
      Desmare further testifies, that it is the custom of the bank not to give credit for the draft, on the books, when there is no check drawn for the amount of the draft. ,
    There were two bills of exception, taken by the plaintiffs.
    1. To the witness, Desmare’s proving that no consideration was given for the draft; or that the defendants received none.
    
      2. To the decision of the Court, sustaining‘the defendants’objection to i Desmare’s detailing the declarations of Saul, made at the time he received the draft from said Saul.
    1. Brownson and Lewis for the plaintiff, contended—
    The evidence of Desmare going to prove a want of consideration in the draft sued on, was improperly admitted because it contradicts the admission on the face of' the draft itself, that value was received.
    
    
      2. The draft sued on, was transferred to the plaintiff s in the ordinary course of business, and was received not subject to any equity between the parties.
    3. The only cases in which a want of consideration can be pleaded, are in ordinary contracts where the instrument had been given through error or fraud, neither of which is alleged here.
    • 4. The refusal of the district judge to permit Desmare the witness of defendants, to detail the declarations'made by Saul at the time of giving the draft to witness m bank, is r . erroneous, because their declarations malte part ot the res gestae. 1 Starkie on Ev. 36. 37. §. 20 21.
    
      Garland and Simon for defendants ; argued,
    1. That the want ox failure of consideration of a promisory note or bill of exchange might be properly inquired into, and proved as between the payee and the maker. 3 Mai*. N. S. 599. 1 ib. N. S. 625. 8 ib. N. S. 556.
    2. That the consideration of a note or bill might be impeached and the want of it enquired into, in the hands of an endorsee who was privy to the transaction or had notice of it. 2 Starkie. Ev. 281. 12 Johnson 306. 12 Mar. 402.
    3. That the drawer of a bill may show by parol evidence that he received no consideration for it. 3 Mai*. 640 — 1. ib. N. S. 90 — 2 Starkie. Ev. 277.
    4. The fact of a bill being endorsed, is not conclusive evidence that it does not belong to the payee. The draft in this case was not received in the ordinary course of business : and the bank did not get it from the payee, but the makers.’
    5. A bill of exchange always imports a consideration ; but it is not to Xhoform, or its being in writing, that the Law gives it this effect — it is to facilitate its negotiation. Chitty on bills 9.
    6. The words value received in a bill or note are only prima fade evidence of consideration, and throws the burden of proof on the defendant. 7 Johnson 321.
    7. If one bill be substituted for another, it is liable to all the equity incident to the one, in lieu of which it was given. 2 Starkie Ev. 292.
   Martin Judge,

delivered the opinion of the Court.

This is a suit on a bill of exchange, drawn as an accommodation paper, given by the drawer to the cashier of the bank of Louisiana at Opelousas ; and by him sent to the mother bank, of which the plaintiff is Cashier. The defendants, the drawers, and endorsees denied any consideration was given for the bill. There was a verdict and jU{jgment por the plaintiff and the defendants appealed.

The testimony shows that a bill of the same amount as the one sued on, subscribed by the same drawers, but not endorsed by the same payee, was handed among the bills and notes of the bank, by the former, to the present cashier of the bank at Opelousas, who called on the drawers with a request they should have it endorsed. They replied, it was the one drawn in favor of the person whose name appeared as the payee ; and they gave another bill of the same amount in favor of another payee who endorsed it.

These facts were deposed to, by the new Cashier, who said, nothing in the books of the bank, showed any payments by the former cashier for the bill — nor was any made by the New Cashier: that bills were often purchased by the former cashier without the intervention of the board. He paid the money often without making any entry on the books, or requiring any check or receipt; and even when he placed full confidence in the drawers he did so before the bill was endorsed.

On his cross examination the witness deposed, that the drawers in giving the second bill, stated, they had not been paid the amount of the first, but he told them this was a matter of no moment, as he, the witness had taken the bill as cash from his predecessor to whom the drawers should look for payment.

The appellants’ counsel has urged, that they were entitled to a new trial, and the judge erred in refusing it. They have contended, the appellees having given by the cross examination, evidence, that when the appellants gave the second bill, they declared the consideration, or amount of the bill was not paid them ; and it is not pretended any was paid afterwards.

The appellee’s counsel has urged that the drawers were called upon by the new cashier, on the behalf of the bank for an endorsement which they were bound to procure and which the bank was .entitled to demand, even if the former cashier had not paid the money — and by giving the new bill unconditionally, they admitted the bank’s right to the amount of the bill.

In a suit between the endorsee, who is the holder, and the drawers and endorser of a hill of exchange, the consideration may be impeached, and the question whether the drawer ever received consideration or payment therefor? en-quired into.

And wherefrom the evidence it appears doubtful whe ther the drawer of the bill has ever received value, or any consideration therefor, the case will be remanded for a new trial.

1. It has appeared to us in the absence of positive testimony, it was not easy to presume (from the mere circumstance that cashiers, when they have frill confidence in drawers; pay them the amount of their bills, before they are endorsed so as to transfer the payee’s title) that in the present case the cashier had such a confidence in the drawers and paid them the amount of this bill.

The appellee’s counsel has urged that strong presumption of this arises from the delivery of the second bill to a person who denied the obligation of the bank to pay for it.

We have deemed it best to remand the case for a new trial.

•' It is therefore ordered adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, the verdict be set aside, and the case remanded with directions to the judge a quo to proceed therein according to Law : the appellee paying costs in this Court.  