*payable at a future day; and so is a debt due from the defendant and a third person.(q)(1)

[ *97]

A judgment debt is a good consideration for a note payable at a future day; for it imports an agreement on the part of the judgment creditor to suspend proceedings on the judgment till the maturity of the note.(r)

A moral obligation may be a sufficient consideration for a bill or note. Thus, where a bankrupt, after his bankruptcy, gave a promissory note to the plaintiff, one of his creditors, for part of his debt, it was held that the note was given on a good consideration.(8)(2)

A note given by the purchaser of an estate to the vendor for the purchase money, though the contract be void by the Statute of Frauds, is made on sufficient consideration.(t)

Between immediate parties—that is, between the drawer and acceptor, between the payee and drawer, between the payee and maker of a note, between the indorsee and indorser, the only consideration is that which moved from the plaintiff to the defendant, and the absence or failure of this is a good defence to an action. Thus, where a bill was drawn in the regular course of trade, and delivered to the payee's agent, before the consideration was given, and the payee's

the original debtor, and that indulgence to him is a considerstion to the maker. Secus if the original debtor is dead, and has no representative. Nelson v. Serle, 4 M. & W. 795; reversing Serle v. Waterworth, 4 M. & W. 9; 6 Dowl. 684, S. C. But if the note be payable immediately, it is conceived that the pre-existing debt of a stranger would not be a consideration, unless credit had been given to the original debtor at the maker's request.

(9) Heywood v. Watson, 4 Bing. 496; 1 M. & P. 268, S. C.

(r) Baker v. Walker, 14 Mees. & W. 465.

(s) Trueman v. Fenton, Cowp. 544; and see Brix v. Braham, 1 Bing. 281; 8 Moore, 261, S. C.

(t) Jones v. Jones, 6 M. & W. 84.

(1) Where a note is given by one man, at the request of another to a third person, in a suit between the maker and payee it is not essential to the validity of the note to show a consideration as between him at whose request it was made and the payor. Horn v. Fuller, 6 N. Hamp. 511.

(2) An expectation, on the part of the payee, that the maker would marry her,

is not a sufficient consideration for a promissory note. Raymond v. Sellick, 10 Conn. 480.

A promissory note, the only consideration of which is the love and affection of the maker to the payee will not create a valid obligation against the maker or his representatives either at law or in equity Smith v. Kittredge, 21 Vermont, 238.

agent, who was to have paid the consideration, failed, the payee could not recover against the drawer.(u) But, between remote parties-for example, between payee and acceptor, between indorsee and acceptor, between indorsee and remote indorser, two distinct considerations, at least, must come in question: first, that which the defendant received for his liability; and, secondly, that which the plaintiff gave for his title. An action between remote parties will not fail unless there be absence or failure of both these considerations.(v) And if any intermediate holder between the defendant and the plaintiff gave value for the bill, that intervening consideration will sustain the plaintiff's title.(w)

*Thus it is no defence to an action by an indorsee for value [ *98] against an acceptor, that the acceptor received no value.(x) Nor on the other hand, that though the acceptor received value, the indorsee gave none. On the same principle, if the acceptance were without consideration, and the plaintiff, the indorsee, knew it, he can recover no more than he gave for the bill ;(y) for, suppose the bill to be for 1007., and that the indorsee gave 601. for it, if he could recover 1007., from the accommodation acceptor, the acceptor having recovered that sum of the drawer, the drawer might recover back 401. from the indorsee as money received to the drawer's use.(z)(1)

(u) Puget de Bras v. Forbes, 1 Esp. 117; Jeffries v. Austen, 1 Stra. 674; Jackson v. Warwick, 7 T. R. 121. In Munroe v. Bordier, 19 L. J. 133, C. P., it seems to be held, that the payee who takes a bill bona fide for value from a person to whom the drawer had intrusted the bill, but who parts with it against his instructions, acquires a title. Sed quære.

(v) Robinson v. Reynolds, 2 Q. B. Rep. 196. Quære, effect of notice by drawer to acceptor not to pay.

(w) Hunter v. Wilson, 19 L. J. 8, Exch.; 4 Ex. 489, S. C.

(x) Collins v. Martin, 1 Bos. & Pul. 651.

(y) Wiffen v. Roberts, 1 Esp. 261. (z) Jones v. Hibbert, 2 Stark. 304.

(1) The consideration of a promissory note taken before due, cannot be inquired into in a suit between the bona fide holder and maker, unless the note is void in its creation. Baker v. Arnold, 3 Caines, 279. Vallett v. Parker, 6 Wend. 615. Woods v. Hynes, 1 Scam. 103.

The indorsee who takes the note after it is due, takes it subject to all the equities between the original parties arising

from the note, including want or failure of consideration. Sylvester v. Crapo, 15 Pick. 92. Thompson v. Hale, 6 Pick. 259. Ayer v. Hutchins, 4 Mass. 370. Wilson v. Holmes, 5 Ibid. 543. Rice v. Goddard, 14 Pick. 293. Barnet v. Offer man, 7 Watts, 130.

In a suit in the name of the payee of a note not negotiable, for the use of an innocent indorsee against the maker, the

The entire failure of the consideration has the same effect as its original and total absence. A. appointed B. his executor and gave him a promissory note, payable on demand for 1007., in consideration of the trouble he would have in the office of executor after A.'s death. B. however, died first; but his executors brought an action on the note against A. It was held that as the consideration for the note had totally failed, the action was not maintainable.(a)

It is no defence to an action by an indorsee for value against an acceptor or other person, who has received no consideration, that, at the time the plaintiff took the bill, he knew the defendant had received no value ;(6) unless, indeed, the plaintiff took it of a person who held it for a particular purpose, and was therefore guilty of a breach of duty in transferring it to the plaintiff, and the plaintiff, at the time of taking it, were cognizant of the circumstances. (c) If a message be sent comprising facts, the communication of which would impugn the title to a bill, there is no presumption that the message was delivered; that must be proved. (d)

Where a defendant can insist on a total want of consideration as a defence, he may also set up its partial absence or failure, as an answer pro tanto. Thus, in an action by the drawer of a bill for 197. 58.,

(a) Solly v. Hinde, 2 C. & M. 516; 6 C. & P. 316, S. C.; Wells v. Hopkins, 5 M. & W. 7.

(b) Smith v. Knox, 3 Esp. 47; Charles v. Marsden, 1 Taunt. 224; Fentum v. Pocock, 5 Taunt. 193; 1 Marsh. 14 S. C.; Bank of Ireland v. Beresford, 6 Dow, 237; and see Poplewell v. Wilson, 1 Stra. 264, and Wiffen v. Roberts, 1 Esp. 261. (e) See the Chapter on Transfer.

(d) Middleton v. Barned, 4 Ex. Rep. 241.

defendant may set up want of consideration. Long v. Long, 1 Morris, 43.

When a promissory note has been assigned but not indorsed, proof by the maker that there was no consideration, or that the note was fraudulently obtained by the payee, is admissible. Calder v. Billington, 15 Maine, 398.

A note absolutely void, as for an illegal consideration, is void in the hands of an innocent indorsee for a valuable conconsideration without notice. Lucas v. Waul, 12 Smedes & Marsh. 157.

A ne

gotiable note, given for a gambling debt, is void, even in the hands of a bona fide holder for value. Unger v. Boas, 13 Penna. State Rep. 601.

The maker of a negotiable note, appearing on the face of it to have been given in consideration of the transfer of a patent right, which afterwards proved to be of no value, cannot set up this want of consideration as a defence to an action by a bona fide indorsee. Goddard v. Lyman, 14 Pick. 268.

payable to his own order, against the acceptor, it appearing [*99] that the bill was accepted for value as to 107., and as an accommodation to the plaintiff as to the residue, Lord Ellenborough held, "that although with respect to third persons the amount of the bill might be 191. 58., yet as between these parties it was an acceptance to the amount of 107. only."(e)

But the money as to which the consideration fails must be of a specific ascertained amount, for the jury cannot, in an action on a bill or note, assess by way of set-off the damages arising from a breach of contract, but the defendant must be left to his cross-action. Drawer against the acceptor of a bill; the plaintiff agreed to let a house to the defendant for twenty-one years, and in consideration of 5007., to be paid by three bills, to be drawn by the plaintiff and accepted by the defendant, agreed to execute a lease for that term. The bill in question, and two others, were drawn and accepted accordingly, and the defendant was immediately let in possession; but the plaintiff refused to execute the lease. It was argued, therefore, that the consideration had failed. But Lord Ellenborough, and afterwards the Court, on a motion for a new trial, held, that it was no defence to the action, that the defendant was bound to pay the bills, and might have his remedy on the agreement for non-execution of the lease.(f) Where the consideration for an acceptance was goods sold, and the vender forcibly retook possession, the consideration was held not to have failed.(g) So, where a bill or note is given for goods sold, or work done, the price, amount, and quality of the goods, or work, cannot be disputed in an action on the bill.(h) So, where work had been done by the plaintiff for the defendant, for which the plaintiff charged the defendant 637., and the defendant paid the plaintiff 43l., in money, and gave him a bill for the remaining 201.; it is no defence to an action by the plaintiff against the defendant on the bill that the work done was not worth 437.(i)

And, where the amount for which the consideration fails is unliqui

(e) Darnell v. Williams, 2 Stark. 166; Barber v. Backhouse, Peake, 61; Clark v. Lazarus, 2 M. & G. 167; 2 Scott, N. R. 391, S. C.

(f) Moggeridge v. Jones, 14 East, 486; 2 Camp. 38, S. C.; Spiller v. Westlake, 2 B. & Ad. 155; Mann v. Lent, 10 B. & C. 877; Grant v. Welchman, 16 East, 207; Cuff v. Browne, 5 Price, 297.

(g) Stephens v. Wilkinson, 2 B. & Ad. 320; see also Jones v. Jones, 6 M. & W. 84, and Lomas v. Bradshaw, 19 L. J. 273, C. P.

(h) Morgan v. Richardson, 7 East, 482, n.; 3 Smith, 487, S. C.; Tye v. Gwynne, 2 Camp. 346; Obbard v. Betham, 1 M. & M. 483.

(i) Tricky v. Larne, 6 M. & W. 278.

dated, a bill in equity for an injunction to restrain an action on the bill of exchange and for an account cannot be maintained.(k)(1)

*But, if fraud can be shewn, it is otherwise as between the [*100]

parties, for there is then no contract. Defendant gave plaintiff a promissory note for some pictures. It was proposed to prove, that the sum for which the note was given infinitely exceeded the value of the pictures. Lord Ellenborough "I will not admit the evidence for the purpose of reducing the damages, by showing that the pictures were of an inferior value; but, if you can, by the inadequacy of the value, and other circumstances, prove fraud on the part of the plaintiff, so as to show that there was no contract at all, the evidence will be admissible: if it fall short of that, it will be unavailing."(1) So, if a horse is warranted, a check is given, and the horse turn out unsound, the breach of the warranty is no answer to an action on the check; but, if the seller knew of the unsoundness, there is fraud; there was no contract, and no action lies on the check.(m)

() Glennie v. Imri, 3 Y. & C. 436. (1) Solomon v. Turner, 1 Stark. 51. (m) Lewis v. Cosgrave, 2 Taunt. 2.

(1) The failure of consideration, either in whole or in part, may be set up as a defence between the original parties, or any other than a bona fide holder without notice. Tillotson v. Grapes, 4 N. Hamp. 444. Earl v. Page, 6 N. Hamp. 447. Pryor v. Coulter, 1 Bailey, 517. Cook v. Mix, 11 Conn. 432. Denniston v.

Bacon, 10 Johns. 198. demy v. Cowls, 6 Pick. Cutler, 13 Wend. 605.

is no defence, see Jordan v. Jordan, Dudley, Geo. 181. Hinton v. Scott, Ibid. 245. Scudder v. Andrews, 2 McLean, 464. Washburn v. Picott, 3 Dev. 390. Kernodle v. Hunt, 4 Blackf. 57. Wentworth v. Goodwin, 21 Maine, 150. Chase v. Weston, 12 N. Hamp. 413.

Contra, Moore v. Lanham, 3 Hill, (South Carolina,) 299. Sumter v. Welsh, 1 Brevard, 539. Smith v. Ackerman, 5 Blackf. 541. Purkett v. Gregory, 2 Scam. 44. Barr v. Baker, 9 Missouri, 850. Griffey v. Payne, 1 Morris, 68. Hammatt v. Emerson, 27 Maine, 308. Coburn v. Ware, 30 Maine, 202.

Amherst Aca427. Payne v. Barns v. Finch, 2 Root, 53. Spalding v. Vandercook, 2 Wend. 431. Burton v. Stewart, 3 Ibid. 236. Rogers v. McKnight, 4 J. J. Marsh. 154. Johnson v. Titus, 2 Hill, 606. Lattin v. Vail, 17 Wend. 188. Scudder In an action on a bill or note, the dev. Andrews, 2 McLean, 464. Washburn fendant cannot show a partial failure of v. Picott, 3 Dev. 390. Campbell v. Brown, consideration to reduce the damages, if 6 How. Miss. 106. Jenness v. Parker, the quantum to be deducted is of an un24 Maine, 289. Stone v. Fowle, 22 Pick. certain and unliquidated amount, and 166. Ferguson v. Oliver, 8 Smedes & there has been no attempt to repudiate Marsh. 332. the contract or restore the consideration. That a partial failure of consideration Pulsifer v. Hotchkiss, 12 Conn. 234.