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contract.(s) And if A makes a note in favor of B, and delivers it to B without consideration, intending it as a gift, and afterwards takes it up and gives a new note instead, this renewed note is without consideration.(t) So also it is well settled that the

Tate v. Hilbert, 2 Ves. Jr. 111; Seton v. Seton, 2 Bro. Ch. 610; Per Parke, B. in Easton v. Pratchett, 1 Cromp. M. & R. 800, and Milnes v. Dawson, 5 Exch. 948. But

see next note.

(s) Thus, in Holliday v. Atkinson, 5 B. & C. 501, where a promissory note, expressed to be for value received, was made in favor of an infant aged nine years, and in an action upon the note by the payee against the executors of the maker, no evidence of consideration being given, the learned judge told the jury that the note, being for value received, imported that a good consideration existed, and that gratitude to the infant's father, or affection to the child, would suffice. Held, that although the jury might have presumed that a good consideration was given, yet that those pointed out were insufficient; and a new trial was granted. In Easton v. Pratchett, 1 Cromp. M. & R. 798, 2 Cromp. M. & R. 542, to a declaration on a bill of exchange by indorsee against indorser, the defendant pleaded that he indorsed the bill to the plaintiff, without having or receiving any value or consideration whatsoever for or in respect of his said indorsement; and that he, the defendant, had not at any time had or received any value or consideration whatsoever for or in respect of such indorsement. Held, after verdict, that the plea was sufficient. In Pearson v. Pearson, 7 Johns. 26, which was an action by the payee against the maker of a promissory note, the court said: "The validity of the note cannot be supported upon the ground taken at the trial, of its being a gift; for a gift is not consummate and perfect until a delivery of the thing promised; and until then the party may revoke his promise. A parol promise to pay money, as a gift, is no more a ground of action than a promise to deliver a chattel, as a gift. It is the delivery which makes the gift valid. Donatio perficitur possessione accipientis. Noble v. Smith, 2 Johns. 52. The question then was upon the delivery and consideration of the note; for if there was no consideration for the note, it was a nude pact, and void as between the original parties to it." In Fink v. Cox, 18 Johns. 145, a father, from affection merely, gave to his son a promissory note for one thousand dollors, payable to him or order, sixty days after date. In an action of assumpsit brought by the son against the executor of his father, to recover the amount of the note, it was held, that the action could not be maintained, for it was not a donatio causa mortis, nor a valid gift of so much money, but a mere promise to give; and blood or natural affection is not a sufficient consideration to support a simple executory contract. And see Schoonmaker v. Roosa, 17 Johns. 301; Slade v. Halsted, 7 Cowen, 322. In Parish v. Stone, 14 Pick. 198, it was held, that a promissory note, made upon no other consideration than that of equalizing the distribution of the promisor's estate after his decease, was without a sufficient legal consideration, and therefore could not support an action or found a legal claim. In Clement v. Reppard, 15 Penn. State, 111, it was held, that the consideration of a promissory note not under seal, given for a balance on work done, may be inquired into in a suit between the original parties, even though the maker, at the time it was given, expressed himself satisfied with it, there being no evidence that, at the time of the settlement or giving of the note, any new consideration passed from the payce to the maker. And see Barnet v. Offerman, 7 Watts, 130; Barnum v. Barnum, 9 Conn. 242; Klein v. Keyes, 17 Misso. 326; Haynes v. Thom, 8 Fost. 386.

(t) Thus, in Copp v. Sawyer, 6 N. H. 386, it was held, that where a promissory note

donor's own promissory note, or an unaccepted bill of exchange drawn by the donor, cannot be the subject of a donatio causa mortis.(u) But the note of a third person is a proper subject of such gift, even without indorsement, and the donee may maintain an action in the name of the executor or administrator of the donor without his consent.(v)

It is sometimes an important question, and one not always free from difficulty, particularly in the case of bills of exchange, whether the plaintiff in an action is the immediate promisee of the defendant, within the meaning of the rule, or whether he is to be regarded as a remote party. The drawer of a bill of exchange is the immediate promisee of the acceptor; therefore, if the acceptance was without consideration, the drawer cannot recover against the acceptor. But it is otherwise of the payee; he is regarded as a stranger to the acceptor, in respect to the con

is made as a gift, and intended as a legacy, no suit can be sustained upon it, in favor of the payee, against the executor or estate of the maker; and where such note is executed and delivered as a gift, and afterwards taken up by the maker, and a new note given for a larger amount in lieu of it, the latter being likewise intended as a gift, the giving up of the first furnishes no consideration upon which the latter can be sustained, for any part of the amount. In Hill v. Buckminster, 5 Pick. 391, it was held, that a promissory note, expressed to be for value received, may be avoided, as between the payee and the maker, by proving that there was no consideration for it originally; and a note given in renewal of one so voidable is likewise without consideration. Parker, C. J. said: "In coming to this conclusion, we undoubtedly overrule some of the expressions in the opinion as reported in the case of Bowers v. Hurd, 10 Mass. 427, though the case itself was rightly decided upon other principles. It is in that opinion stated that to a promissory note, in which value is acknowledged to have been received, it cannot be objected in defence, between the original parties, that there was no existing consideration when the promise was made, though it would be competent to show that the consideration had failed or that it was illegal. But further opportunity to examine the cases has convinced us that the opinion so expressed is untenable; there being cases in the English and other books, which are cases clearly of defence founded upon no consideration, rather than a failure of one once existing. This, though contrary to the usual principle of holding a party to his acknowledgment, must be considered as the law, and we cannot depart from it, however disingenuous such defences generally appear to be." And see Geiger v. Cook, 3 Watts & S. 266. In Dawson v. Kearton, 3 Smale & G. 186, a different opinion is intimated.

(u) Harris v. Clark, 2 Barb. 94, 3 Comst. 93 (overruling Wright v. Wright, 1 Cowen, 598); Parish v. Stone, 14 Pick. 198; Smith v. Kittridge, 21 Vt. 238; Raymond v. Sellick, 10 Conn. 480; Holly v. Adams, 16 Vt. 206; Craig v. Craig, 3 Barb. Ch. 76; Flint . Pattee, 33 N. H. 520. See contra, Jones v. Deyer, 16 Ala. 221; Coutant v. Schuyler, 1 Paige, 316; Bowers v. Hurd, 10 Mass. 427; Woodbridge v. Spooner, 1 Chitty, 661; Seton v. Seton, 2 Bro. Ch. 610; Wells v. Tucker, 3 Binn. 366.

(v) Bates v. Kempton, 7 Gray, 382.

sideration for the acceptance. Consequently, if the acceptance is absolute in its terms, and the bill is received by the payee in good faith and for value, it is no answer to an action by him, that the defendant received no consideration for his acceptance, or that the consideration therefor has failed. And it is immaterial for this purpose, whether the bill is accepted while in the hands of the drawer, and at his request, or has passed into the hands of the payee before acceptance, and is accepted at his request. (w)

(w) Robinson v. Reynolds, 2 Q. B. 196. In assumpsit by indorsee of a bill of exchange against acceptors, defendants pleaded that K., the drawer, was in the habit of delivering goods to C. to be carried by him to Liverpool, consigned and deliverable there to K.'s order, and on so doing, of receiving from C. a receipt for the goods, hill of lading, or document, which, by the custom of merchants, when indorsed for value, passed the property in the goods, and entitled the indorsee to have them delivered to him. That K. used to obtain advances from plaintiff on indorsing to plaintiff such document, and drawing and delivering to him a bill of exchange on defendants (who traded at Liverpool as purchasers and commission agents of such goods as K delivered to C.), if the goods were deliverable to defendants, or on some other person to whom they were deliverable. That plaintiff used to forward the indorsed document to Liverpool, and to have it presented to defendants (or such other person), and, on the faith thereof, and at plaintiff's request, and in consideration of such security on the goods, defendants (or such other person) used to accept the bill of exchange; of all which plaintiff had notice. That K., pretending to act in pursuance of such usage, fraudulently indorsed and delivered to plaintiff a document in the usual form, to which C.'s signature was forged, pretending that it was genuine, and that the goods mentioned in it had been delivered to C., which was false; and K, at the same time, indorsed the bill of exchange to plaintiff, who advanced K. the amount on the faith of the document. That plaintiff indorsed the document, and had it presented to defendants, with the bill of exchange, and requested them to accept the bill of exchange on the faith of, and in consideration of the delivery of, the document, and delivered the document to them as a true one. That defendants, in consideration of the goods mentioned in the document, and confiding and relying on, and in consideration and on the faith of, the document, and, in ignorance of its being forged, accepted the bill of exchange for and at the request of plaintiff. That so the consideration for the acceptance, which defendants had been induced to make under the mistake into which they had been led by the said conduct and indorsement of plaintiff, wholly failed; and that there never was any other consideration for the acceptance. The plea did not allege that plaintiff knew the document to be forged, or represented it to be genuine. Held, by the Court of Queen's Bench, on motion for judgment non obstante veredicto, to be a bad plea. Judgment of the Queen's Bench affirmed in the Exchequer Chamber. Tindal, C. J., in delivering the judgment of the court in the Exchequer Chamber, said: "The sole ground on which the defendant relies is, that the acceptance was not binding on account of the total failure or insufficiency of the consideration for which it was given, the document, on the delivery of which the acceptance was given, having been forged, and there never having been any other consideration whatsoever for the acceptance of the defendants. And this would have been a good answer to the action, if the bank had been the drawers of the bill. But the bank are indorsees, and indorsees for value; and the failure or want of consideration between them and the acceptors constitutes no defence; nor

It would seem, also, that the question is not always conclusively determined by the form of the instrument. For, although it should appear, on the face of the bill sued on, that the plaintiff was the immediate promisee of the defendant, the plaintiff may show that he was not so in fact; but that the bill came to him through other hands. Thus, the payee is in general the immediate promisee of the drawer; and, in an action by the former against the latter, a want or failure of consideration for drawing the bill is a good defence. But if A, in New York, being indebted to B, in London, procures C, in New York, to draw a bill on London in favor of B, and remits the same to B in payment of his debt, the liability of C to B will be absolute, whether C received any consideration from A or not. For the transaction is the same in substance, as if the bill had been drawn in favor of A, and by him indorsed to B; and in that case, in an action by B against C, there could of course be no inquiry into the consideration between C and A.(x) But if A were the mere agent

would the want of consideration between the drawer and acceptors (which must he considered as included in the general averment that there was no consideration), unless they took the bill with notice of the want of consideration, which is not averred in this plea. Admitting that the bill was accepted by the drawee at the request of the bank, and on a consideration which turns out to be utterly worthless, the case is the same as if the bill had been accepted without any value at all being given by the bank to the defendants; and, on that supposition, the defendants would still be liable as acceptors to the bank, who are indorsees for value, unless not only such want of consideration existed between the drawer and acceptors, but unless the indorsees had notice or knowledge thereof. For the acceptance binds the defendants conclusively, as between them and every bona fide indorsce for value. And it matters not whether the bill was accepted before or after such an indorsement. Consistently with every averment in the plea, the bill may have been accepted on the credit of the drawer, or for his accommodation; and the plaintiff would then unquestionably have a right to sue, having given full value for it." The plaintiff is spoken of in this case as an indorsee. The bill was in fact drawn to the order of the drawer, and by him indorsed to the plaintiff. The plaintiff, therefore, was substantially the payee. Besides, an indorsce, who takes a bill before it is accepted, is as much an immediate party to the acceptance as the payee. (x) Munroe v. Bordier, 8 C. B. 862. In this case it was held, that where the purchaser or remitter in London of a foreign bill gets from the drawer, according to the usage in London, credit until the next foreign post-day for the amount, and delivers the bill to the payee, who receives it bona fide and for value, the drawer is liable for the amount to the payee, although, in consequence of the purchaser or remitter's failure before the next foreign post-day, the drawer never receives value for it. The declaration stated that A (the defendant) made a bill of exchange, and directed it to B, a merchant in France, requiring him to pay the amount to the order of C (the plaintiff); that A delivered the bill to D, who delivered it to C; and that B refused payment, &c. A pleaded that he made and delivered the bill to D for the use of C, on the faith and

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of B, any defence which would be good against him would also be good against B.(y) If a note, payable to B, is indorsed by

terms of being paid the price and value thereof according to the usage of merchants in that behalf, that is to say, on the next foreign post-day; that neither C nor any other person, then or at any time before or since, paid him the said price or value of the bill, or any part thereof; that he never had any value or consideration for the making or delivery of the bill; and that C always held and still held the same without any value or consideration whatever to him (A) for the same. Replication, that, after the making of the bill and before it became due, D, who appeared to be, and whom C believed to be, the lawful holder, delivered the bill to him for a good and valuable consideration, and without notice of the premises in the plea mentioned. Held, that the plea was no answer to the action; and that, even if it were sufficient to call upon C to show bona fides, he did so by his replication. Wilde, C. J. said: "The writers upon foreign bills contemplate the existence of four parties, the giver of value, or purchaser of the bill, or remitter, as he is often called, - the drawer, - the party to whom the bill is to be paid abroad, and the drawce. The ordinary course of dealing with reference to foreign bills, as described by them, begins by the sale of the bill by the drawer to some person other than the payee; it, therefore, does not contemplate that the consideration for the bill should necessarily move from the payee to the drawer, or that no person but the drawer should have a right to confer a title to the bill upon the payee. See Beawes's Lex Mercatoria, Bills of Exchange, par. 6, p. 416 (452), citing Marius, p. 22. And in par. 14, p. 418 (453), he says: In case of a remitter's failing before he has paid the value, and the person on whom the bill is drawn gets advice of this occurrence before acceptance, and therefore refuses to accept it, the bill, on its returning protested, shall be paid, notwithstanding, with all charges, by the drawer, under proof by the possessor that he negotiated the said bill, and paid a just value for it.' According to that rule, the plaintiff's would in this case be entitled to recover; for the plea does not deny that they gave a just value for the bill. Again, in par. 15, Beawes states the law to be, that where the drawer gives credit to the remitter, without advising his principal thereof, if the remitter does not pay the money, the drawer shall suffer the loss. Here, it is not shown by the plea, that the bill was handed to the plaintiffs before the next post-day, and, for the reasons above given, it seems to be immaterial whether it was handed over before or after that day, nor that the drawers ever gave notice to the payees that the price had not been duly paid. They may, therefore, be considered to have given credit to the remitter. It appears to us, then, that, on this declaration and plea, it must be taken that Coates & Co were the purchasers of the bill in question; and that the drawers placed it in their hands with a controlling power over it, giving them credit for a certain time for the purchase-money; and that they delivered it to the payees, who received it bona fide and for value; for no fraud is alleged, and value as between Coates & Co. and the plaintiffs is not denied. Under such circumstances, we are of opinion that the plaintiffs acquired a good title to the bill, and may sue the drawers upon it, although they have never received value for it. Suppose the bill had been given to Coates & Co. for their accommodation, or a promissory note had been given to them, made payable to the plaintiffs, in order that they, Coates & Co, might borrow money upon it, or hand it over to the payees in discharge of a debt, surely the payees, in either case, might sue upon the instrument, without proving the giving of value to the drawer or maker. The want of such value could not be relied upon as an answer to the action, on the ground of the contract between the immediate parties to the instrument being nudum pactum."

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(y) Puget de Bras v. Forbes, 1 Esp. 117. The plaintiff in this case was a foreigner,

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