and contract debts, she is responsible: 3 Camp. 124. But, if he has once resided in the country, the animus revertendi will be presumed, unless the contrary appear, and she will not be responsible: 3 Camp. 124. Though it has been held, that, if a feme coverte give a promissory note, and after the death of her husband promise to pay it, in consideration of forbearance, such promise is void; yet, if the wife has a separate estate secured to her at the time she gave the note, the promise may be enforced at law: Lloyd v. Lee, 1 Str. 94. See post," Coverture." WANT OF CONSIDERATION. When a Defence.] "Where there is a total failure of consideration for the payment of the bill by the deft., it can be insisted on as a total bar to the action, and a partial failure may be insisted on as a bar pro tanto: Bayl. 323; Pea. Rep. 61, 216; 2 Stark. 166. Where the contract on which the bill was given is entire, deft. may prove that it was wholly rescinded; or, where there was a partial failure of consideration, that the contract has been partially rescinded, if it consisted of divisible parts, Bayl. 394; therefore, it is a good defence to an action on a note, that it was given for an apprenticefee with deft.'s son, and that the indentures were void for want of a stamp, under 8 Anne, even though plt. had maintained the son for a time, as the consideration (the apprenticeship) was entire, and had wholly failed: Jackson v. Warwick, 7 T. R. 121. So, where deft. accepted the bill, in consideration that plt. would take deft. into partnership, and the treaty was broken off, it was held, that plt. could not recover the whole amount, if he had not sustained an adequate injury: Ledger v. Ewer, Pea. Rep. 216. And, if goods paid for by a bill are damaged, and the contract is rescinded on that account, no action lies on the bill, Lewis v. Cosgrave; 2 Taunt. 2; nor does an action lie on a bill given for the price of a horse, warranted sound, if there were a breach of warranty, and the horse were immediately returned, ib.; and fraud may be given in evidence by the deft., so as to avoid the contract altogether: Lewis v. Cosgrave, 2 Taunt. 2; Solomon v. Turner, 1 Stark. 52. As, where a bill is given for the price of goods fraudulently sold under a warranty, the breach of warranty is a bar to an action on the bill, if the deft., immediately on discovering the fraud, repudiate the contract, by tendering back the goods; and, where more money has been already paid than the goods or business fraudulently sold are worth, the same may be retained, and the payment of the bill resisted: 2 Taunt. 2; 3 Stark. 175; 1 ib. 51; 1 Camp. 40. Where a check is given on *a verbal condition, which the drawer finds is to be broken or [*304] eluded, he has a right to stop the payment of it as against such person: 3 Camp. 376. A partial failure of consideration will constitute no defence, if the quantum to be deducted on that account is matter, not of definite computation, but of unliquidated damages, Bayl. 395; and which are the subject of an action, ib.: thus, if a bill or note is given for the stipulated price of goods, previously delivered, it is no ground of partial defence that the price was exorbitant: Solomon v. Turner, 1 Stark. 51. As, where a stipulated price is given for a picture, the deft. will not be allowed to prove the inadequacy of its value, ib.; or that the goods were damaged when they ought to have been sound, Morgan v. Richardson, 1 Camp. 40, n., 2 ib. 346, Brown v. Davis, 7 East, 480, VOL. I.

45

Basten v. Butler, ib. 479; unless the contract was rescinded on that ground: Lewis v. Cosgrave, 2 Taunt. 2. So, it is no answer to an action on a bill or note, that it was given as the condition of a lease to be executed by the plt. and of letting the deft. into possession of the premises, and that plt. had refused to execute the lease, for he is not bound to execute till the price is paid; and, as the deft. was let into possession, the consideration fails in part only; and the sum to be allowed for such failure is matter not of mere calculation, but of unliquidated damages: Moggridge v. Jones, 14 East, 486. So, it is no answer to an action on a bill or note, that it was for an apprentice fee, and that the apprenticeship had been dissolved for misconduct in the master: Grant v. Welchman, 16 East, 207; sed vide Ledger v. Ewer, Pea. Rep. 216; Bayl.

395-6.

Between what Parties the Consideration may be Questioned.] Between the original or immediate parties, as the drawer and acceptor, drawer and payee, endorsee and his immediate endorser, want of consideration may be insisted on, Chit. B. 70. Str. 674, 7 T. R. 121; and, when the holder plt. took it from one of such parties, after the bill fell due, the deft. may avail himself of any defence that he might have set up in an action against him by such party. But a want of consideration cannot be a bar to an action on a bill in the hands of a bona-fide holder, for value, before the bill fell due, Collins v. Martin, 1 B. & P., 651; and it will always be presumed the plt. holds for value, unless the contrary appear, the onus probandi of which lies on deft. If, indeed, it can be proved the plt. gave no value for the bill, then it will be presumed he is in privity with the first holder, and will be affected by every thing which would affect such first holder: ib. The want of consideration, in toto or in part, cannot be insisted on, if the plt., or any intermediate party, between him and the deft., took the bill, bona fide, and upon a valuable consideration: Bayl. 397. But, in an action by endorsee, if it appear that a prior party made it under duress, or was defrauded of it, and the plt. has previous notice so to do, he must be prepared to prove under what circumstances, and for what value, he became holder: Duncan v. Scot, 1 Camp. 100. In an action by an endorsee against acceptor, if the deft. show there was no consideration between him and drawer, it lies on plt. to prove that plt., or some other person, gave value for it: Thomas v. Newton, 2 C. & P. 606.

It makes no difference whether the plt. a bona fide holder for value, knew the deft. received no consideration for his being a party to the bill, if the deft. became such party as an accommodation: Smith v. Knox, 3 Esp. Rep. 47, 6 Dow. 237. But, if the bill was given for a specific purpose, which has not been satisfied, and that is proved to have been known to plt., then he cannot recover: ib. Chit. B. 59. If plt. be proved to be the agent of a party who cannot recover, neither can hè: i Moo. 556. Where the holder did not give full value for the bill, which was an accommodation one, and that known to him when he gave the part of such value, it was held he could only recover such part:

Wiffin v. Roberts, 1 Esp. Rep. 261. If one of three partners [305] undertake to provide for a bill drawn by the firm *upon, and accepted by deft., the latter may, in an action at the suit of the

three partners, give in evidence such undertaking as a defence: Rich would v. Heap, 12 East, 323.

When Plt. bound to prove a Consideration in the first Instance, and when Deft. must give a Notice to dispute it.] Bills and notes are presumed to have been made on good consideration, and it is not necessary for plt. to prove it in the first instance on the trial, 2 Freem. 257, Chit. B. 68, unless he brings an action as bearer of a bill transferable by delivery, and then only under suspicious circumstances first proved by deft.; as, where the bill has been lost, and the plt. cannot give a reasonable account how he came by it, and has had due notice, before the trial of the action, to prove the consideration, &c., which he gave for the instrument: Duncan v. Scott, 1 Camp. 100; 3 Burr. 1516, 1527; 2 Camp. 5; Chit. B. 68.

In order to set up the defence of want of consideration, it is incumbent on deft. previous to the trial, to give distinct notice to the plt.'s attorney to prove the consideration: Bayl. 373; Paterson v. Hardacre, 4 Taunt. 114. As to proof of service of such notice, post, "Notices." The notice must be given a reasonable time before the trial. In addition to such notice, deft. must also cast some suspicion upon plt.'s title, either in his cross-examination, or by other testimony, and show that the bill was obtained from the deft. or some previous holder, by undue means: this may be done by the cross-examination of plt.'s witness, or other testimony, or plt. need not go into any evidence of the consideration: Reynolds v. Chettel, 2 Camp. 596; Rawlings v. Hall, 1 C. & P. 11. However, no notice need be given in K. B., where the deft. can make out a strong case of fraud or want of consideration against the plt.; as, where the plt. is a party to the fraud, or the nature of the transaction is itself intrinsically notice: Green v. Deakin, 2 Stark. 347. But it appears to be always requisite, by the practice of the C. P., to do so in that court: Paterson v. Hardacre, 4 Taunt. 114, supra. When plt. has received due notice from the deft. to prove the consideration, his counsel may do so in the outset, or if no suspicion has been cast upon the plt.'s title by the cross-examination of his witnesses, he may reserve himself as to the proof of the consideration, till deft. has cast a suspicion on his case, or has proved that deft. received no value. When plt. may go into full evidence of the circumstances under which he holds the bill, Abbott, C. J., has at N. P. declared this is the correct course; and, according to the note in Browne v. Murray, R. & M. 253, this practice of the K. B. prevails also in the C. P., though it was otherwise ruled in Spooner v. Gardiner, R. & M. 86; Chit. B. 401. And Lord Ellenb., in Delauney v. Mitchell, 1 Stark. 439, held, that when the consideration is to be gone into, it should be done at first. "But, if the plt. thinks fit, in the outset, to call any evidence as to the consideration, he must go through all the evidence he proposes to give for that purpose, and he shall not be permitted to give further evidence in reply:" p. Abbott, C. J., R. & M. 254.

ILLEGAL CONSIDERATION. When Defence may be set up.] Whenever the deft. is at liberty to insist on the want of consideration as a defence, he may always insist that the consideration for the bill, or a part thereof, was illegal: 1 W. Bla. Rep. 445; 3 Taunt. 226; Chit. B. 74.

As to what is an illegal consideration, see Chit. B. 74 to 85, a.; post, "Illegal Consideration."

A subsequent illegal contract or consideration of any description taking place in a second endorsement or transfer of a bill, and not in its inception, nor in a transfer through which the holder must make title, will not invalidate the same, in the hands of a bona-fide holder, who took it before it became due. 1 Stark. 385; 1 East, 92; 8 T. R. 391; Chit. B. 7 ed. 87.

With respect to a bill substituted in lieu of one given on an [*306] *illegal consideration, it will, in general, be open to the same objections as the original bill or note, 2 B. & A. 588; but, if the new bill is given for a consideration excluding what made it originally illegal, and all other illegal considerations, it will be good, ib. Thus, if a bill given originally on an usurious consideration, be substituted by a bill confined to what remains due for principal and legal interest, it will be good: Bay. 407; 2 Stark. 287; 1 Camp. 187; 2 Taunt. 184. Where a bill, affected by an illegal consideration, being in the hands of an innocent holder, and the latter, on being informed of the illegality, takes a fresh bill in lieu of it, drawn by one of the parties to the original usury, and accepted by a third person for the accommodation of the other party, it was held that he could not maintain an action against the acceptor of this substituted bill: ib., Tate v. Willings, 3 T. R. 538; 4 Taunt. 683. "If a bill or note is given in part upon a legal, and in part upon an illegal consideration, and several bills or notes are afterwards substituted in lieu thereof, the effect of the illegality may be confined to some only of the substituted bills or notes, and the other stand exempt; as, where a bill or note is given as to half for a gaming debt, and as to the residue for money received, and two bills or notes, of equal amount, are afterwards substituted for it, if the giver does any thing which may be considered an election to ascribe the gaming debt to the one, he will be liable upon the other: promising to pay one, whilst both remain unpaid, shall be deemed an election to ascribe the gaming debt to the other, Bayl. 409; and the receiving of a bill or note, if the whole of the consideration be not bad, will not extinguish the good part of the consideration. Thus, the receiving a bill or note upon an usurious contract, but given for a previous legal subsisting debt, will not extinguish such debt, though the security itself will be void, 3 Camp. 119; but, if there was usury in the concoction of the bill, even the principal and interest cannot be recovered: 9 Ves. 84; 1 T. R. 153.

Where a bill or note is given on a consideration bad in part, the whole becomes illegal; as, where part of it was for spirits sold in small quantities, and the rest for money lent: Scott v. Gilmore, 3 Taunt. 226; 6 Esp. Rep. 24; and 3 Camp. 9, contra. Where a bill of exchange was partly for money lent at the time and place of play, and partly for money lost at play, it was held that the plt. could recover nothing upon the bill, but that he might recover the money lent on the count for money lent, as the bill was thereby wholly vitiated: Robinson v. Bland, Burr. 1077.

With respect to what party may set up illegality of consideration as a defence, such illegality may be shown between the immediate parties

themselves, and all parties privy to the illegality when they took the bill. Where a third person, having given value for a bill, knew, at the time he became the holder, that it was originally founded on an illegal transaction, Steers v. Lashlley, 6 T. R. 61, 1 Esp. Rep. 166, s. c., Wyat v. Bulmer, 2 Esp. Rep. 538, Brown v. Turner, ib., 631, 7 T. R. 630, s. c., Feise v. Randall, 6 T. R. 146, Chit. B. 7 ed. 85, a., or where a person became holder of such a bill after it became due, he cannot recover on it: Brown v. Turner, 7 T. R. 630. However, a person who, at the request of the holder of a bill, endorses it, and is obliged to pay the contents to a bona-fide holder, may recover the money paid from any person whose name is on it: Seddens v. Stratford, Peake's Rep. 215; Petrie v. Hannay, 3 T. R. 424; Aubert v. Maze, 2 B. & P. 371. In cases where the legislature has declared that the illegality of the contract or consideration shall make the bill or note void, the deft. may insist on such illegality, though the plt., or some party between him and the deft., took the bill bona-fide, and gave a valuable consideration for it. And the innocent holder can, in such case, only resort to the party from whom he received the bill, &c., and then he cannot recover upon the same, but only on the original consideration: Bendelack v. Morier, 2 H. Bla. 338; Bowyer v. Bampton, 2 Str. 1155; Wyat v. Bulmer, 2 Esp. Rep. 538-9; Witham v. Lee, *4 ib. [*307] 264. And it has been decided that, if the payee of a bill of exchange endorse it upon an usurious contract made at the time of such endorsement, a bona-fide holder cannot afterwards recover upon it against the acceptor, because such holder must claim title through such first endorser: Lowes v. Mazzaredo, 1 Stark. 385. But, unless it has been so expressly declared by the legislature, illegality of consideration will be no defence in an action at the suit of a bona-fide holder, without notice of the illegality, Wyat v. Bulmer, 2 Esp. Rep. 538, Brown v. Turner, 7 T. R. 630, unless he obtained the bill after it became due: Amory v. v. Mereweather, 2 B. & C. 573; and see further Chit. B. 7 ed. 86. By 58 G. 3, c. 93, no bill or note shall, though given for an usurious consideration, or upon an usurious contract, be void in the hands of an endorsee for valuable consideration, unless such endorsee had, at the time of discounting or paying such consideration for the same, actual notice that such bill or note had been originally tainted with usury.

By suffering a judgment by default, the deft. loses the opportunity of objecting to the sufficiency or legality of the consideration: 4 T. R. 275; 4 Taunt. 683.

ACCORD AND SATISFACTION.] In an action on a bill or note, deft. may prove that the bill has been satisfied, or plt.'s claim thereon extinguished, Bayl. 267; as by showing that plt. has taken a security of a higher description from the deft., for the money due upon the bill or note, Bayl. 267; or by taking a third person's note as a security for the original debt, or for a composition with a party's creditors, Lewis v. Jones, 4 B. & C. 513, post, "Composition;" or that it has been satisfied by payment or otherwise. In an action against the acceptor by the endorsee, where a bill is payable to a third person, deft. may prove that it has been paid by the drawer himself, whereby he will be released from his obligation, Beck v. Robley, 1 H. Bla. 89, n., Burbridge v. Man