nor the form of the acceptance, relieved the estate of one of the execu- Sec. 26. tors, who died in the lifetime of the other, from the ordinary liability upon the bill: Liverpool Borough Bank v. Walker, 4 DeG. & J. 24. A note given by an executor, so carrying on the testator's business, to a creditor, but in the name of the testator's firm, where the testator's estate is insolvent, is binding on the executor: Lucas v. Williams, 3 Giff. 150; s. c., 4 DeG. F. &. J. 436. A. & B. signed a note, by which they promised "as churchwardens and Overseers to pay to C. or order a sum of money with interest; which sum was in fact the amount of a loan made by C. for the use of the church;-Held, that A. & B. were personally liable: Rew v. Pettet, 1 A. & E. 196. See Furnival v. Coombs, 6 Scott N. R. 522. Where one gives a note as guardian of a minor, although it is so stated in the body of the note, he is personally liable: Foster v. Fuller, 6 Mass. 58. Where individuals subscribe their proper names to a note, prima facie, they are personally liable, though they add a description of the character in which the note is given; but such presumption of personal liability may be rebutted as between the original parties, by proof that the note was given by the makers as agents with the payee's knowledge: Brockway v. Allen, 17 Wend. 40. A bill drawn on "Steamer C. W. D. and owners," and accepted by "steamer C. W. D. per B. agent" binds B.'s principals the owners of the steamer; and they can be sued by their proper names: Alabama, &c., Co. v. Brainard, 35 Ala. 476. Sed contra, Ormsby v. Kendall, 2 Ark. 338. A note as follows: "We the undersigned trustees of the church and in behalf of the whole board of trustees," signed by two of the trustees, binds the church, as the agency sufficiently appears on the face of the writing: Haskell v. Cornish, 13 Cal. 45. Sed contra, Barker v. Mechanics Insurance Co., 3 Wend. (N. Y.) 94. 3 See the cases as to the signature of agents of individuals or officers of companies given in note 1 to s. 25. The effect of this is that whether the agent of another, or the officer of a company, had or had not authority to sign the bill or note, the construction to be given to it shall be that which is most favorable to its validity as a bill or note for the payment of money, and the consequent liability of some of the parties signing the bill. In all such contracts it must be remembered that some person or company is intended to be bound by the bill or note; and if the principal has not been bound at law or in equity, the party making the representation of the liability of such principal must, in the absence of the words "sans recours," or without recourse," be held liable. The general result of the cases is however conflicting; and no clearly defined rule can be stated as to what form of acceptance will free the agent or officer from personal liability. The French law treats the bill or note given by an agent, or a person in a representative character as strictly the contract of the principal, through the instrumentality of the agent, trustee, guardian, or other person acting en autre droit; but if the principal is incapable of contracting, or has not 66 Sec. 26. authorized the contract, the agent is personally liable: Story on Bills, s. 75. "This section somewhat modifies the rigor of the common law rule :" Chalmers on Bills, 80. Valuable considera Consideration for a Bill. 27. Valuable consideration for a bill 1 may be constituted tion defined. by Imp. Act,8.27 Rights of holder for value. Holder by lien is a holder for value. (a) Any consideration sufficient to support a simple contract: 2 (b) An antecedent debt or liability; such a debt or liability is deemed valuable consideration, whether the bill is payable on demand or at a future time: 3 2. Where value has at any time been given for a bill, the holder is deemed to be a holder for value as regards the acceptor and all parties to the bill who became parties prior to such time: 4 3. Where the holder of a bill has a lien on it, arising either from contract or by implication of law, he is deemed to be a holder for value to the extent of the sum for which he has a lien. 5 1 A consideration founded on mere love, or affection or gratitude (which in a legal technical sense is called a good consideration in contradistinction to a valuable consideration), is not as a general rule, sufficient consideration for a bill of exchange, or a promissory note. Nor is a mere moral obligation, although coupled with a express promise, a sufficient consideration. These observations relate to a consideration for the bill as between the immediate parties, and are not applicable to the title of a holder in due course. The true doctrine seems to be that a consideration which the law esteems valuable, must in all cases exist, in order to furnish a just foundation for an action on a bill or note. ILLUSTRATIONS. A son gave his note for a debt owing by his father to the holder of the note, for which he was not responsible;-Held, that there was a good consideration for the note, viz., family affection: Cook v. Long, Car. & M. 510. A note expressed to be for value received was made in favor of an infant aged nine years, who was the child of another person ;-Held that neither gratitude to the infant's father, nor affection for the child, was a sufficient consideration for the note: Holliday v. Atkinson, 5 B. & C. 501. A defence that the note was made to the holder as a gratuity, and that the maker never received any consideration therefor, is good: Poulton v. Dolmage, 6 U. C. Q. B. 277. A note given by testator in renewal of a previous note to secure a sum of money to a god-child, on which note the testator had paid interest ;Held, the renewed note constituted a debt, but not to the prejudice of creditors: Dawson v. Kearton, 3 Sm. & Gif. 186; 2 Jur. N. S. 113. The want of consideration in toto, or in part, cannot be set up as a defence, if the plaintiff or any intermediate party between him and the defendant, took the bill or note bona fide and upon a valid consideration : Morris v. Lee, Bayley on Bills, 397. The partial failure of the consideration for which a promissory note was given, is no defence to an action on the note, without evidence of fraud: Kellogg v. Hyatt, 1 U. C. Q. B. 445. Nor that the consideration proved to be less beneficial than was represented: Dalton v. Lake, 4 U. C. O. S. 15. But an entire failure of consideration is a good defence to an action brought by the vendor of goods as payee: Kellogg v. Hyatt, 1 U. C. Q. B. 445. Parol evidence is admissible to disprove receipt of value for a bill or note, but not to vary the engagement to pay: Davis v. McSherry, 7 U. C. Q. B. 490. A. made jointly with B. a lease of certain lands to C., taking notes from C. for the rent, payable at the time it would become due. The day after the execution of the lease, A. died intestate, and then B. died, and B.'s executor's sued C. on the notes;-Held, that they could not recover, the consideration for the notes having failed: Merwin v. Gates, U. C. E. T. 7 Will. IV. To an action on a note, defendant pleaded that it was given on an agreement by plaintiff to pay one M. a certain sum, which he had not done ;Held, no defence: Matthewson v. Carman, 1 U. C. Q. B. 266. Where a note was given by one partner to another so as to raise money to pay off a debt of the firm, the maker is not liable thereon to his partner Miller v. Thompson, 10 U. C. Q. B. 391. A note made to a wife during coverture may be sued by husband and wife. The note imports a consideration for the promise, and the wife is the meritorious cause of action: Philliskirk v. Pluckwell, 2 M. & S. 383. A guarantee endorsed on a note at the time of its execution in the following words: "We guarrantee the payment of the within note," does not shew a sufficient consideration for the promise, the case being within the Statute of Frauds: Lock v. Reid, 6 U. C. O. S. 295. Where a bill was given for the purchase of shares in a ship, which ship was burned on the morning of the day on which the bill was delivered, but the hull was afterwards sold for $500 ;-Held, that there was not a total failure of consideration: Whitman v. Parker, 5 Russ. & Gel. 155. The following have been held void for want of a sufficient consideration: C.'s note given for the purpose of paying A.'s debt to B. : Bingham v. Kimball, 17 Ind. 396; s. p. Tousey v. Taw, 19 Ind. 212. A note given by A. to B. for a debt due by C. upon a consideration of forbearance, and upon no privity shewn between A. & C. : McGillivray v. Keefer, 4 U. C. Q. B. 456. A note founded upon a mere moral obligation to pay money: Nightingale v. Barneg, 4 Greene, (Iowa), 106. Sec. 27. Sec. 27. A note given by a person to an officer of a benevolent organization for his initiation fee, and for his quarterly dues as a member: Nash v. Russell, 5 Barb. 556. A promissory note, the only consideration of which is the love and affection of the maker to the payee: Smith v. Kittridge, 21 Vt. 238. A note given in consideration of a supposed claim made before suit upon such claim, when in fact no such claim existed: Sullivan v. Collins, 18 Iowa, 288, s. p. Bullock v. Agburn, 13 Ala. 346. A note given in extremis, payable at the death of the maker, and signed by two witnesses: Hall v. Howard, 1 Rice, (S. C.) 310. A note put up as a forfeit to secure the performance of a verbal sale of land Weatherley v. Choate, 21 Tex. 272. A note given by an heir as a memorandum or evidence of an advancement made to him by the payee: Hardin v. Wright, 32 Mo. 452. A note given in order to obtain possession of the maker's goods, which were wrongfully withheld: White v. Heylman, 34 Pa. St. 142. A note given to the mother of a child, who had been beaten, in consideration of her not prosecuting: Heast v. Sybert, Cheves, (S. C.) 177. A note given by a widow to a creditor of her deceased husband, for the amount of his debt, where the husband had left no estate or assets, though the creditor gave to the widow a receipted bill, acknowledging payment: Williams v. Nichols, 10 Gray, (Mass.) 83. A banking firm advanced money to A. and took a note for such advance, which was signed by A. and his wife, who had no separate property. A died insolvent, and after his death the bank obtained a new note from the widow. It being doubtful whether the widow knew that she was not liable on the first note, her non-liability was not mentioned to her : Coward v. Hughes, 1 K. & J. 443. 2 The consideration for the promise in bills of exchange and promissory notes to pay money, as well as the indorsement of such bills and notes, unlike the case of other contracts, is presumed until the contrary is proved. Bills and notes on their mere production, even without the words "for value received,' are prima facie evidence of valuable consideration, not only between the original parties, but as against third persons. In all cases where the bill or note can be used in evidence, either as against the parties to it, or against third persons, the same legal presumption arises as to its having been given for value, as arises in the case of a deed under seal. A bill or note, therefore, although according to the general principles of the common law is to be considered in the light of a simple contract, is nevertheless in this respect entitled the privilege of a specialty ; for it, like the contract under seal, carries with it the evidence of a valuable consideration. This privilege always belonged to foreign bills, and was, after some struggles, conceded to inland bills and promissory notes. But it is confined to negotiable paper, and does not extend to orders not payable in money. "Some of the peculiar privileges of bills of exchange are of a nature giving them a peculiar sanctity and obligation, and freeing them from the equities and cross claims which may exist between the original parties. These are allowed in order to give them a ready circula tion and extensive credit:" Story on Bills, s. 14. It was formerly held Sec. 27. that a prior want of consideration was an equity attaching to an overdue bill or note in the hands of holder for value: Ex parte Lambert, 13 Ves. 179; Brown v. Davies, 3 T. R. 180; but such is not the law now: Re Overend Gurney & Co., L. R. 6 Eq. 344. Inadequacy of consideration or considerable under-value, may be an important element in cases alleging bad faith or fraud: Jones v. Gordon, 2 App. Cas. 616. But such inadequacy of consideration must be distinguished from a partial absence or failure of consideration, or a part payment on account, or a limited advance made on a bill or note pledged or deposited as security for such advance. ILLUSTRATIONS. Although notes and indorsements, as simple contracts, require a consideration, it has long been held that they import a consideration, prima facie, so as to throw the burden on the other side to show the want of a consideration: McArthur v. McLeod, 6 Jones (N. C.) 475. Where a father gave his note in consideration of the payee marrying his daughter, which marriage was had in fact, and believed to be valid;Held, that the marriage in fact was a sufficient consideration: Wilkinson v. Payne, 4 T. R. 468. On a treaty of marriage a promissory note was given in consideration of the marriage, which was afterwards solemnized, and an action was subsequently brought by the indorsee against the makers of the note;-Held, that as the marriage, the consideration for the note, could not be undone, it was not competent to the makers to avoid the note upon the ground of fraud practiced during the marriage treaty: Hogan v. Healy, 11 Ir. C. L. R., 119; reversing 10 Ir. C. L. R., 6. A note promising to pay the Church Society of the diocese of Toronto or bearer, £50, with interest, towards providing a fund for the support of a Bishop of the western diocese of Canada, who should be appointed in pursuance of an election by the clergy and laity :- Held, to be founded upon a sufficient consideration: Hammond v. Small, 16 U. C. Q. B. 371. It is a good defence to an action on a note by the payee against the maker that such note was made for a special purpose only, to wit, that the payee should take care of it for the maker, and should not negotiate or part with it to any other person, and that there never was any other value or consideration for the note: Wismer v. Wismer, 22 U. C. Q. B. 446. A note was made and delivered to plaintiff in payment of 200 hats and caps, to be delivered by plaintiff to defendant, which at the time of action remained undelivered;-Held, no defence, there being no request for their delivery Anderson v. Jennings, 2 U. C. Q. B. 422. There is plain authority that even as between the original parties. where one buys goods worth more than $40, and gives his note for them, he cannot refuse to take the goods, and then repudiate the note, because of the goods not having been delivered, -seek to defeat the contract by his own act or default, and then repudiate the note, because the contract had failed: Per Thompson, J., in McIntosh v. McLeod, 6 Russ. & Gel. 134. It was formerly supposed to be uncertain how far an antecedent debt was a sufficient consideration for a negotiable security payable on demand; although it was clear that a pre-existing debt due to the transferee of a |