of the payee, could not maintain an action upon the note against the makers. (a)

In an action by an endorser of a bill against the drawer, the defendant may prove that the plaintiff holds the bill as agent or trustee of the payee, and that the payee has requested the defendant not to pay the bill to the plaintiff. (b)

In an action against A. and B. two joint makers of a note, a plea by A. of an agreement by the payee when the note was made, that A. should only be held to pay a certain sum upon the note less than the full amount of it, and that he had paid that amount, has been held bad on demurrer. (c) And it is immaterial whether the agreement is verbal or written. (c)

It is a good defence to an action against the endorser of a note, that the holder, who had received it from the maker, knew at the time of receiving it that the maker had no right to transfer it. (d)

A

[(a) Denniston v. Rogers, 10 Johns. R. 207.]

[(b) In an action by Barker as endorsee against Prentiss as drawer of a bill payable to Robinson and Co. and endorsed by them and also by Taber and Son, it was held to be a good defence that Taber and Son acted as agents of Robinson and Co. and endorsed the bill to Barker merely as agent of Robinson and Co. and for their use; and that Robinson and Co. before this action was brought had requested Prentiss not to pay the bill to Barker; and that the agency of Taber and Son and Barker, which did not appear by the endorsements, might be proved by parol evidence. Barker v. Prentiss, 6 Mass. R. 430.]

[(c) Shed v. Pierce, 17 Mass. R. 623. Parker C. J. giving the opinion of the Court, said, "The agreement is in direct contradiction to the promise contained in the note; and whether in writing or merely verbal, we think, cannot be set up against the note. Being inconsistent with the express terms of the contract, and relating to one only of the promisers, it ought not to defeat the action against the other; as it will if it should be held a good bar."]

[(d) Warren endorsed a note for the accommodation of the makers, for them to raise money on it, but they becoming insolvent with the note in their hands, he directed them not to part with it. They however passed it to Skilding and Haight for a valuable consideration, but informed them at the time of the above facts. It was held that Skilding and Haight could not maintain an action against Warren as endorser. Spencer C. J. giving the opinion of the Court, said, "The plaintiffs are mala fide holders of the note, and they took it with a view to charge a person who had endorsed it to aid men who were in good circumstances, but who became insolvent. The plaintiffs were warned that the note was functus officio, and yet they took it," Skilding v. Warren, 15 Johns. R. 270.]

In an action on a note against an endorser, it is no defence that he endorsed the note for the accommodation of the maker, and that it was intended to be discounted at a particular bank, but that the maker, the bank refusing to discount it, had it discounted by A. B. who knew these circumstances. (a)]

Another species of defence to an action in respect of a bill or note, is (5) want or inadequacy of consideration for giving or transferring it.

A total failure of consideration is, where it can be insisted upon, a total bar: inadequacy, or a partial failure, a bar pro tanto only. (6) (b)

[(a) In an action by J. and T. Powell against Waters, as endorser of a note made by Wood, it appeared that the note was a renewal of one which was made by Wood and endorsed by Waters for Wood's accommodation for the purpose of having it discounted at the Bank of Newburgh for Wood's use. The bank refusing to discount it, it was offered to Parish, one of the firm of J. and T. Powell and Co., who immediately discounted it, being at the time informed of the purpose for which it was made. Waters did not know when he endorsed the note in suit, that the first note had been discounted by Powell and Co. The note in suit was endorsed to the plaintiffs by Powell and Co. Spencer C. J. giving the opinion of the Court, said, "It was entirely immaterial whether the first note was discounted at the Bank of Newburgh or elsewhere. It did not alter or increase the responsibility of the endorser. If the plaintiffs knew when they received the note, that it was intended to be discounted at the Bank of Newburgh, and had been refused, it would not affect them, or establish any fraud." Powell v. Waters, 17 Johns. R. 176.]

(5) Jefferies v. Austen, Str. 647. In an action by the payee of a note against the maker, Eyre C. J. of the common pleas, 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 that the defendant was not restored; and on this proof the defendant had a verdict.

Jackson v. Warwick, 7 Term Rep. 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 failure of consideration (the apprenticeship) 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; but 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, and directed a nonsuit to be entered.

(6) Barber v. Backhouse, Peake, 61. In an action on a bill of ex

Thus in an action against an acceptor, it is a good defence either wholly or in part, that the acceptance was either wholly or in part for the accommodation of the plaintiff; (7)

change 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 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 connexion: 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.

((b) Livingston owing Maule a large sum, and Maule holding land for Livingston's use, Maule conveyed the land to Winter, on his becoming security for Livingston's debt to Maule. By an agreement between Winter and Livingston, Livingston made his notes to Winter, and Winter agreed to convey the land to him on payment of the notes, but this agreement to be void if Livingston did not pay his notes as they fell due. He did not pay them as they fell due, and Winter exercised acts of ownership over the land by selling parcels of it, &c. It was held that Winter could not maintain an action against Livingston on the notes, on account of the failure of the consideration. Per Curiam. "Livingston has received nothing for his notes, and Winter has a complete and perfect title to the lands." Winter v. Livingston, 13 Johns. R. 54.

In an action by Shepard against Hawley and Loomis, as endorsers of a note, it was held to be a complete defence to the action, that Shepard holding Loomis' drafts on Ward, agreed to return them, on receiving certain notes, and among others that in suit, which were accordingly given him, but that he refused to deliver up the drafts-that Shepard received part of the money of Ward, and gave him a receipt in full, erased the acceptances,-and three months after the notes were received, offered to return the drafts in that state to Loomis, who refused to receive them. Shepard v. Hawley, 1 Conn. R. 367.

It was held in a subsequent case that Shepard could not maintain an action against the maker of one of the notes mentioned in the preceding case. Shepard v. Hall, 1 Conn. R. 494.

Where after non est inventus returned on the ca. sa. against the principal in a suit, the bail gave his note for the amount of the judgment, and the judgment against the principal was afterwards reversed on a writ of error, it was held that the consideration for the note of the bail had failed, and that no action could be maintained upon it. Tappen v. Van Wagenen, 3 Johns. R. 465.

A note given to aid a fund for support of the parish minister was held to be void for want of consideration. Boutell v. Cowdin, 9 Mass. R.

Or for some person for whom the plaintiff is trustee. (8) So if a bill or note is given either wholly or as to a specific part, as the consideration of a special contract, and that contract either fails in toto or is in toto rescinded, it will be an answer to an action on the bill or note either wholly or pro tanto, if the plaintiff stands in a situation which makes him liable to such a defence. (9) (a)

(7) Darnell v. Williams, 2 Stark. 166. Payee against acceptor on bill for £19, 128. Defendant proved that he had value for £10 only, and that he accepted for the rest to accommodate the plaintiff: and per Lord Ellenborough, "Though this, as to third persons, is a bill for £19, 12s., yet as between these parties, their acceptance is for £10 only;" and that sum having been paid before the action, he nonsuited the plaintiff.

(8) Jones v. Hibbert, 2 Stark. 304. Defendant accepted a bill for £415 to accommodate Philips and Co.: Philips and Co. endorsed it to their bankers for value, and became bankrupts: the bankers knew it to be an accommodation acceptance, and their demand against Philips and Co. was £265 only in an action by them upon this acceptance, it was held that they could only recover the £265; and they had a verdict accordingly.

(9) 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., and Towers v. Barrett, 1 Term Rep. 133.

[See also Reed v. Prentiss, 1 N Hamp. R. 174.]

[(a) It is a good defence to an action on a note, that it was given in consideration of the assignment of a void patent right from the plaintiff to the defendant. And it seems that the defence is good, although the assignment should contain covenants, on which the defendant might maintain an action against the plaintiff. A note in such a case was held to be void notwithstanding the plaintiff had furnished the defendant with materials, and given him instructions in the art described in the patent, the materials and instructions being of no value to the defendant, except as subservient to the art pretended to be conveyed. Bliss v. Negus, 8 Mass. R. 46.

In an action on notes given for the price of a shearing machine, it was held that the defendant under the general issue might prove that the plaintiff made certain representations with respect to the usefulness of the machine, which were utterly false, and that known to him at the time, and that the machine was in fact worth nothing and totally use

But the partial failure of consideration will constitute no defence if the quantum to be deducted on that account is

less; and that this evidence proved the note to be without consideration and void, and was a complete defence to the action. Sill v. Rood, 15 Johns. R. 230.

Getman agreed with his slave Tom that if Tom would procure him good notes to the amount of $200, and give his own note for $75, that he would immediately manumit him and his family. Tom procured the notes and delivered them to his master, and among them one made by Christy payable to Petry and not to his order, and by him assigned to Getman to be collected at his own risk. Getman made out an instrument of manumission, and procured a certificate from the overseers of the poor. Getman however kept the papers two years and 5 months, and then gave them to the town clerk to be recorded, and during all that time kept and treated the negroes as his slaves. In an action against Christy upon his note in the name of Petry, the court considered Getman as the real plaintiff, as there was no evidence that the note was ever delivered to Petry; and that there was a failure of consideration, as the agreement of Getman was to manumit the slaves immediately on receiving the notes, and he had refused to do so for two years and five months; and that it made no difference whether the manumission was legally consummated or not, without any delivery of the certificate, since Getman's actually holding the negroes as his slaves was a violation of his agreement. Judgment for the defendant. Petry v. Christy, 19 Johns. R. 53.

In an action by an insurance company against the endorser of a note given to secure a premium of insurance, the insurance company having before the suit commenced become liable to pay the insured, who was the maker of the note, a return of part of the premium, it was held that the defendant was entitled to have the amount of the return of premium deducted from the amount of the note, although the maker was insolvent, and indebted to the insurers upon other premium notes. Per Curiam. "The consideration for the note was the premium of insurance, and the only question is, what was the amount of that premium. If the plaintiffs are bound to return part, then the premium really and ultimately due, is not as much as it was at first understood to be."- "The surety is no further bound than his principal, and is entitled to the same defence." Phoenix Ins. Co. v. Fiquet, 7 Johns. R. 383.

Stow claiming a certain sum of Wadley on account of an alleged mistake in settling their accounts, which mistake Wadley denied, Wadley made his note for the amount payable to Stow, and lodged it with Ten Eyck, the parties agreeing that if Wadley within 60 days should exhibit Ten Eyck proof from which Ten Eyck should think that Wadley ought not to pay the note, then it should be delivered to Wadley, otherwise it should belong to Stow. Wadley within the 60 days insisted on giving parol evidence to Ten Eyck, which he thinking himself not authorized to admit, returned the papers to Stow. It was held that Stow could not maintain an action against Wadley on the note. Per Curiam. "There was no consideration for the note. Ten Eyck declined to act, and would not receive the parol evidence that the defendant offered. The defendant was not in default, and his default, or a decision of Ten Eyck against him, was a condition precedent to the validity and binding operation of the note." Stow v. Wadley, 8 Johns. R. 96.

Olmsted made a note payable to E. Stewart or bearer, but at the time