possession of the blank check. There was no more ostensible authority here than there was in Awde v. Dixon, 6 Exch. 869, Hogarth v. Latham, 3 Q. B. D. 643, or Watkin v. Lamb, 85 L. T. (N. S.) 483. An incomplete check gives an authority to fill it up which is only a prima facie authority. It does not import an ostensible authority to fill it up, which is absolute.

The plaintiff's rights under the blank check for $100, and to the money received for it, depend upon the authority actually given by the defendant when she signed it, and the evidence offered should have been admitted in respect of the credit claimed for the $400 paid under the blank check.

The entry must be: Exceptions sustained.

CHAPTER IV

CONSIDERATION1

2 BLACKSTONE, COMM. 445, 446.

A consideration of some sort or other is so absolutely necessary to the formation of a contract, that a nudum pactum, or agreement to do or pay anything on one side, without compensation on the other, is totally void in law; and a man cannot be compelled to perform it.

[But] if a man enters into a voluntary bond, or gives a promissory note, he shall not be allowed to aver the want of consideration in order to evade payment; for every bond, from the solemnity of the instrument, and every note from the subscription of the drawer, carries with it an internal evidence of a good consideration.'

STARR v. STARR.

(Supreme Court of Ohio, 1858. 9 Ohio St. 74.)

Error to the court of common pleas of Athens county. Reversed in the district court.

On the 8th day of October, 1857, the plaintiff filed in the court of common pleas of Athens county her petition against the defendant,

1 For cases as to what constitutes such a parting with value as to make a holder one in due course, see part II, chapter II, section 1.

*

2 "Now we do not admit that, when one voluntarily makes a written promise to another to pay a sum of money, the promise can be avoided merely by prov ing there was no legal and valuable consideration subsisting at the time, any more than, if he actually paid over the amount of such note, he can recover it back again, because he repents of his generosity. * * We are satisfied that none of the decisions respecting the avoidance of notes or other written promises for want of consideration are impeached by our decision in this case. A careful examination will discover that in all those cases the ground taken in defense is, not that there was originally no consideration, contrary to the express admission of the promisor, but that the consideration had failed, or that it rested in mistake or misapprehension; what the parties supposed to be a consideration turning out in fact to be none. It was on this principle that the case of Boutell et al. v. Cowden, Adm'r, 9 Mass. 254, was decided. In those cases the promisor is always permitted, against the party with whom he contracted, to show the mistake, or the failure of what was supposed to be substantial. This does not contradict his own acknowledgment of value received, but sets up an equitable claim of discharge, upon the ground that both parties were deceived in the contract. Fraud, illegality, and imposition are also proper defenses against actions to enforce such promises, depending upon other principles." Bowers v. Hurd, 10 Mass. 427, 429, 430 (1813), overruled in Hill v. Buckminster, 5 Pick. (Mass.) 393 (1827), and Parish v. Stone, 14 Pick. (Mass.) 198, 23 Am. Dec. 378 (1833).

stating that Philip M. Starr, in his lifetime, made and delivered to plaintiff his certain promissory note in writing for the payment, to plaintiff or bearer, of $5,000 on demand; that said Philip M. Starr, after the delivery of the note, departed this life, leaving it unpaid; and that demand had been made of the defendant, as his executor, for the allowance or payment of the note, and that he refused to do either. Whereupon judgment is asked for the amount of the note and interest.

To this petition the defendant answered: (1) That his said testator, Philip M. Starr, never made the note in the petition mentioned, and never assumed and promised as therein stated. (2) That, if said testator did make said note, the same was made without any consideration, or value whatever, moving from the plaintiff to said testator.

At the May term, 1858, of said court, the cause was submitted to the court, and the court found "that the said promissory note was executed and delivered by the said testator, as the said plaintiff hath in her said petition averred. And the court further find that the said note was given by the said testator a short time before his death to the said plaintiff, who was the daughter of said testator, as an advancement and gift by the said testator to the said plaintiff, and as some provision for her out of his said estate, and without any other or different consideration whatever. And the court, being of opinion that, by law, natural love and affection, and a desire on the part of the testator to provide for and advance the said plaintiff, are not a good and sufficient consideration to enable the plaintiff to recover on said note, do find that said note was without consideration, as said defendant hath in his said answer averred." Thereupon judgment was rendered against the plaintiff for costs, and she excepted to the ruling and judgment. To reverse this judgment, the plaintiff filed a petition in error in the district court, insisting that the court of common pleas erred: (1) In ruling "that, by law, natural love and affection, and a desire on the part of the testator to provide for and advance the said plaintiff, are not a good and sufficient consideration to enable the said plaintiff to recover on said note." (2) In finding that the note was without consideration. (3) In rendering judgment against the plaintiff, when it should have been for her.

The questions thus presented were reserved in the district court for decision by the supreme court.

PER CURIAM. The judgment of the court of common pleas must be affirmed, upon the principles settled in the case of Hamor v. Moore's Adm'rs, 8 Ohio St. 239.

The note in the case before the court was a gift, and its delivery was the delivery of a promise only, and not of the thing promised. The promise being unfulfilled at the death of the maker of the note, the gift failed. And as the promise was without consideration, and could not have been enforced against the maker in his lifetime, it cannot be against his executor.

Judgment affirmed.

EASTON v. PRATCHETT.

(Court of Exchequer, 1835. 1 Cromp., M. & R. 798.)

Assumpsit on a bill of exchange drawn by the defendant in his own favor upon Peter Maddocks, and indorsed by the defendant to the plaintiff. Plea, that the defendant indorsed said bill to the plaintiff without consideration, and that the defendant has not at any time received any value or consideration for or in respect of said indorseReplication that the defendant received from the plaintiff a good and sufficient consideration for and in respect of said indorsement concluding to the country. The jury found a verdict for the defendant. A rule nisi to enter judgment non obstante veredicto for the plaintiff was obtained."

Lord ABINGER, C. B. *

It is clear that on this issue both parties were at liberty to go into evidence as to the consideration for the indorsement of the bill. It appears, in point of fact, that they did so; for evidence was given upon it on both sides, and the jury have found for the defendant. It is therefore established by the verdict that the bill was indorsed without consideration; but it has been argued that this plea is bad, because in its language it does not necessarily exclude that species of consideration which does not lie in tangible possession, but is something of a different nature, such as the forbearing to sue, or a guaranty of another person's debt, which are not pecuniary considerations capable of possession, and it is said. that such considerations cannot properly be said to be had or received. by the defendant. We are of opinion, however, that this objection. cannot be sustained. Whatever be the nature of the consideration, if it is actually obtained, the party may both in legal and common language be said to have had and received it. If a man is to have credit, and it is given to him, he has that for which he stipulates. So, if a bill is given for forbearance, the party may be said to have the consideration, because he actually possesses the benefit of that forbearance. This appears to us to be a sufficient answer to this objection. But it is further contended that the plea is bad, because it does not exclude the case of the bill having been delivered to the plaintiff by way of gift; that is, that an indorsement may be without consideration, yet if it be intended to be a gift, it will be binding. Supposing it to be true that such gift is binding, in one sense indeed the indorsement may be said to be without consideration, as it is without pecuniary consideration; but if it can be the subject of an action, it can only be on the ground of there being some consideration, as of favor or affection, or the desire to promote the interests of another. Without any violence to language, the terms used in this plea may so be construed, and that would be a sufficient answer to this objec

3 The statement is abridged, and the arguments of counsel and part of the opinion are omitted.

tion; but I own that I go further. If a man give money as a gratuity, it cannot be recovered back, because the act is complete, yet a man who promises to give money cannot be sued on such promise; and if so, I do not see how a promise in writing, not under seal, can have any binding effect. The law makes no difference between such a promise and a verbal one. There is the same distinction as to a bill of exchange. If a party gives to another a negotiable instrument, on which other parties are liable, the man who makes the gift cannot recover the bill back, and the man to whom the bill is given may recover against the other parties on the bill; but it is a very different question whether the giver binds himself by the indorsement, so as to make himself liable thereupon to the person to whom he gives it. There is no decision that he does, and there is a strong authority the other way, and the prevailing opinion in the profession is that a parol promise of a gift, whether verbal or in writing, will not be binding. It appears, therefore, that the supposition of a gift, which has been made for the purpose of this argument, would not support the action. We are of opinion, however, that the plea must be taken to negative the existence of any such consideration, even supposing that it would be sufficient. Upon the whole, we think that the plea must now be considered as alleging that no consideration existed, and that after verdict it cannot be disturbed.

Rule discharged.

THOMPSON v. CLUBLEY.

(Court of Exchequer, 1836. 1 Mees. & W. 212.)

Assumpsit, by the indorsee against the acceptor of a bill of exchange for £200. drawn by one H. R., payable to his own order, and by him indorsed to the plaintiff.

Plea: That the bill of exchange was wholly made by H. R., at the request and for and by way of accommodation of and for the plaintiff, and was accepted by the defendant, at the request of H. R., for and by way of like accommodation of and for the plaintiff, and that at the time of making and accepting the said bill of exchange it was expressly agreed, by and between the said parties, that if the said bill of exchange should happen to be outstanding at the time when it became due, it should be taken up and paid by the plaintiff, and that no claim or demand should at any time be made against the defendant or H. R., upon or in respect of it-concluding with a verification. Replication: That before and at the time of the commencement of the suit the plaintiff was, and still is, the holder of the said bill of exchange for good and sufficient consideration, in respect of his be

Accord: Milnes v. Dawson, 5 Exch. 948 (1850).