Between the drawer and the acceptor, the drawer Want of conside. and the payee and his agent, and the indorsee and his ration, when a immediate indorser, fraud, or the total want of consideration, may be questioned'. And though we have seen that a parol agreement to renew a bill, affords no defence to an action 2; yet if a bill or check be given on a verbal condition, which the drawer finds is to be broken or eluded, he has a right to stop the payment and may defend an action thereon'.

In those cases also in which a defendant would be at liberty to insist upon a total want of consideration, he may shew that the consideration does not extend to all the money payable by the bill or note, and the plaintiff shall only recover for the residue+.

Jefferies v. Austen, Stra. 647. In an action by the payee of a note against the maker, Eyre, C. J. allowed the defendant to prove that it was given as a reward, in case the plaintiff procured the defendant to be restored to an office, and the defendant was not restored, and on this proof the defendant had a verdict.

Solomon v. Turner, Bart. 1 Stark. 51, If a promissory note be given as the stipulated price of a picture, the maker cannot give the inadequacy of the consideration in evidence, with a view to diminish the damages, but may prove such circumstance as indicatory of fraud, in order to defeat the contract altogether; and see Ledger v. Ewer, Peake. 216.-Fleming r. Simpson, 1 Campb. 40.

Richmond v. Heapy, 1 Stark. 202. If one of three partners undertake to provide for a bill of exchange drawn by the firm, upon and accepted by the defendant, the latter may, in an action at the suit of the three partners, give in evidence such undertaking as a defence to the action.

Jackson v. Warwick, 7 T. R. 121. The defendant's son was apprenticed by indenture to the plaintiff, and the defendant gave the plaintiff a note for £10 as an apprentice fee; but this premium was not mentioned in the indentures, nor were they stamped pursuant to 8 Ann. c. 9. The son remained part of his time and then absconded. In an action on the note, and the failure of consideration (the apprenticeship) being relied on as a defence, it was contended that the avoiding the indentures could not collaterally affect the note, and that at all events the consideration had not wholly failed, inasmuch as the plaintiff had maintained the apprentice during his stay. Lawrence, J. however, thought that the consideration was entire, and had wholly failed; he allowed a verdict to be taken for the plaintiff, with liberty to the defendant to move to enter a nonsuit. The court concurred in opinion with Lawrence, J. and directed a nonsuit to be entered; see Grant v. Welchman, 16 East. 207.

* Ante, 61.

Wienholt v. Spitter, 3 Campb. 376.

* Bayl. 234, 5.-Barber v. Backhouse, Peake. 61. In an action on a bill of exchange by the payee, the defendant paid part of the money into court, and it appeared upon the trial that there was no consideration for the other part; Law, however, urged that the payment of the money into court admitted the bill was good for part, and

2

Want of consideration, when ma⚫ terial,

But the money as to which the consideration fails, must be of a specific liquidated amount; for, where a partial failure of consideration arises from unliquidated damages, sustained by the breach of a subsisting contract, the performance of which was the consideration of the bill or note, such breach of contract cannot be investigated in an action on the bill or note; but the plaintiff will be entitled to a verdict for the whole amount of the bill, leaving the defendant to his cross action'.

Where, however, such contract has been rescinded in toto when entire, or in part when it may be divided,

if it was good for part it was good in toto; but Lord Kenyon declared himself clearly of a contrary opinion, upon which the jury found for the defendant, and this case being afterwards mentioned by Lord Kenyon in the course of argument, Law said he was perfectly satisfied with the decision.

Ledger v. Ewer, Peake. 216. In an action by the payee of a bill against the acceptor, the consideration appeared to be, that the plaintiff, had taken the defendant into partnership; but on the defendant's friend's advice he broke off the connection; there was evidence of fraud on the plaintiff's part in drawing the defendant into the engagement, which Lord Kenyon left to the jury; but he told them, if they were against the defendant on the evidence of fraud, they should take into consideration the damages the plaintiff had really sustained by the nonperformance of the contract, and were not obliged to find the whole amount of the bill. The jury, however, found for the defendant.

Wiffen v. Roberts, 1 Esp. Rep. 261. This was an action by the indorsec against the drawer of a bill of exchange accepted by one Yates. The defence set up was, that the bill was an accommodation one, and that the defendant had not paid full value for it. Lord Kenyon said, that where a bill of exchange is given for money really due from the drawee to the drawer, or is drawn in the regular course of business, in such case the indorsee, though he has not given the in'dorser the full amount of the bill, yet may recover the whole, and be holder of the overplus above the sum really paid to the use of the indorser; but where the bill is an accommodation one, and that known to the indorsee, and he pays but part of the amount, in such case he can only recover the sum he has actually paid on the bill. The plaintiff was nonsuited on another ground.

Bayl. 236, 7.-Moggeridge v. Jones, 14 East. 486.-3 Campb. 38. S. C. Drawer against the acceptor of a bill. The plaintiff agreed to let a house to the defendant for 21 years, and in consideration of £500, 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 into possession; but the plaintiff refused to execute the lease. It was urged therefore that the consideration had failed. But Lord Ellenborough, and afterwards the court, on a motion for a new trial, held that this was no defence to the action; that the defendant was bound to pay the bills, and

ration, when ma

it will be competent to the defendant, in an action on Want of considethe bill or note, brought by the one contracting party terials against the other, to prove that the contract has been thus wholly or partly rescinded, and thus or partial failure of consideration'.

prove a total

It does not appear to have been decided, whether a promissory note or check, given by the maker to the payee as a gift, and without consideration, can be enforced between these parties. In the case of Tate

might have his remedy on the agreement for non-execution of the lease. Vide Broom v. Davis, cited 7 East's Rep. 480.,And Basten v. Butter, 7 East's Rep. 479. And the cases therein cited.

Morgan v. Richardson, 1 Campb. 100. To an action by the drawer against the acceptor of a bill drawn payable to the drawer's order, the defence was, that the bill had been accepted for the price of some hams, and that they had proved so bad as to be almost unmarketable. The sum for which they were actually sold was paid into court. Lord Ellenborough held that this partial failure of consideration was no defence to this action ; but that the defendant must take his remedy by action. See also 7 East. 482. note a.-3 Smith's Rep. 487. notes. S. P. Fleming v. Simpson, 1 Campb. 40.-From Tye v. Gwynne, 2 Campb. 346, it appears, that this case was afterwards brought before the King's Bench, and the court approved of the direction of the chief justice.

Tye v. Gwynne, 2 Campb. 346. This was an action on a bill of exchange by the drawer against the acceptor, and the same point arose as in the last case, with the exception that no money was paid into court, Lord Ellenborough said he should adhere to the judgment of the court in Morgan v. Richardson, vide last case.

'Bayl. 236.-Lewis v. Cosgrave, 2 Taunt. 2. This was an action on a banker's check drawn by the defendant, and given to the plaintiff for the price of a horse, sold by the plaintiff to the defendant, and warranted sound: the horse was in fact unsound, and that was relied on as a defence. The defendant proved that he had sent back the horse, but the plaintiff refused to take it: he however sent it again, and left it in the plaintiff's stable without his knowledge. Heath, J. told the jury, that as the plaintiff had refused to receive back the horse, the contract for the sale was not rescinded, and that the defendant was therefore bound to pay the check, and had his remedy, by action, for the deceit. They found a verdict for the plaintiff; but on a rule nisi for a new trial, and cause shewn, the court, on the ground of there being clear evidence of fraud, made the rule absolute. See Weston v. Downes, Dougl. 23.-Power v. Wells, Cowp. 818.--Towers v. Barrett, 1 T. R. 133.

The general opinion appears to be, that such a bill or note cannot be enforced. In Nash v. Brown, Sittings at Westminster, Trin. 1817, a bill of exchange was accepted by the defendant as a present to the payee, who indorsed it to the plaintiff for a small sum advanced to him. And Lord Ellenborough held, that the plaintiff was only entitled to recover so much as he had actually advanced on the bill. Formerly, such a bill or note seems to have been considered to be available. Williamson and Ux v. Losh, Executor, MS. Ashhurst, J. Paper Books, 19th vol. 54. Mich. Term,

Want of conside

ration, when material.

v. Hilbert', it was held, that an absolute gift to take effect immediately, cannot be considered as donatio mortis causa; therefore such gift of a common check on a banker payable to bearer, and of the parties' own promissory note, was not donatio mortis causa, or an appointment or disposition in nature of it; and was not capable of any greater effect in equity than at law; it was therefore ordered that the bill as to the check should be dismissed without prejudice to any action; and as to the note, it being doubted whether an action would lie against the executor for want of consideration, the court offered to retain the bill, if an account was necessary. In the same case it was also decided, that where a banker's check is given, and is paid away for valuable consideration, or to a creditor, the exccutor is liable; and if the person to whom it is

16 Geo. 3. cited 7 T. R. 351. This was an action of assumpsit against the defendant, as executor of John Losh, deceased, upon the following promissory note: "I, John Losh, for the love and affection that I have for Jane Tiffin, my wife's sister's daughter, do promise that my executors, administrators, or assigns, shall pay to her the sum of £100 of money, one year after my decease, and a caldron, and a clock, a wainscoat chest, and a bed and bed-clothes, seven pudder dishes as wituess my hand, this 16th day of February, 1763. Witnessed by us, A. B. C. D." Jane Tiffin afterwards intermarried with the plaintiff. Upon the trial, a verdict was found for the plaintiff, and a case reserved. The defendant admitted he had proved the will, and had assets sufficient to cover the damages, but contended that there was no consideration in point of law, and that the note could not be recovered upon, and that, as the testator was not bound, the executor was not. The court held, that the instrument being in writing, and attested by witnesses, the objection of hudum pactum did not lie, and ordered the postea to the plaintiff. This case was afterwards observed upon by Lord Chief Baron Skynner, in delivering the opinion of the judges, in Rann v. Hughes, 7 T. R. 351, when he intimated, that, so far as this case went on the doctrine of nudum pactum, it was erroneous.

Seton v. Seton, 2 Bro. Ch. Ca. 610. The mother of the plaintiff made a promissory note for £9,500, and delivered it to a trustee, as a provision for a child, of which she was then pregnant; she afterwards filed her bill to have the note delivered up; the child, who was then born, together with the trustee, filed their cross bill, to have the agreement entered into by the note carried into execution. Upon general demurrer to the bill for want of equity, the court held that it was not sufficiently nudum pactum, to allow the demurrer.

A moral, or even an honourable obligation would be sufficient to give effect to a note. Lee and Muggeridge, 5 Taunt. 86.-Gibb 7.. Merrill, 3 Taunt. 311.

Tate v. Hilbert, 2 Ves. jun. 111.

rution, when mas

given receives it, before the banker has notice of the Want of considedeath of the drawer, it cannot be recalled. If a terial. bill, &c. have been fraudulently obtained, a court of equity will relieve, and detain the bill'.

sideration, when

Whenever the defendant is at liberty to insist on Illegality of conthe want of consideration as a defence, he may also it vitiates. insist that the consideration, or a part thereof, was illegal. A contract is always legal, if it be not repugnant to the revealed Law of God, to the general policy of the Common Law, or to some Legislative Provision. The principles on which illegality in a contract vitiates it, are pointed out in Lightfoot v. Tenant. Illegal considerations have been considered as distinguishable into three heads.-1st. The doing an aet malum in se, or malum prohibitum.-2dly, The omission of the performance of some legal duty.And 3dly, A stipulation encouraging such crime or omission *. But the distinction between malum in se, and malum prohibitum, has recently been denied 5. Illegal considerations may be either those void at common law, or those void by statute.

First, Considerations illegal at common law are At common law. those which are prejudicial to the community at large,

or those which affect the person or interests of an individual. Those of the former description, are,

1st, any contract made with an alien enemy; and if a bill be drawn upon any such transaction, it will not be available after a restoration of peace. 2dly, Stipulations in general restraint of trade, as if a party

'The Bishop of Winchester v. Fournier, 2 Ves. sen. 445. et post. Guichard v. Roberts, 1 Bla. Rep. 445.-Scott v. Gillmore, 3 Taunt. 226.-Bayl. 237.

1 Bos. & Pul. 554, 5.-1 Fonbl. 345. and see a learned note in Holt C. N. P. 107.

* 1 Bla. Com. 57, 8.-Co. Lit. 206, b. n. 1.—Mitchel v. Reynolds, 1 P. W. 189.-Lloyd v. Johnson, 1 Bos. & Pul. 340, 1.-Lightfoot v. Tenant, id: 556.

Aubert v. Maze, 2 Bos. & Pul. 375.-Sedgwick on Bla. Com. 54. Sed vide Witham v. Lee, 4 Esp. Rep. 264.

Willison v. Pattison and others, 7 Taunt. 439.-Ante, 18; but see the exception, as to British prisoners in a foreign country, in Antoine v. Morshead, 1 Marsh. 558.-6 Taunt, 237. S. C.-Ante, 18; and as to the effect of a subsequent promise to pay, Duhammel v. Pickering, 2 Stark. 90.