CHECKS.

A certified check is a check which has been recognized by the proper officer as a valid appropriation of the amount of money therein specified to the person therein named, and which bears upon itself the evidence of such recognition. Certification of a check is usually accomplished by writing the name of the officer authorized to bind the bank in that manner across the face of the check. There is a practice of marking checks "good" by the banker, which fixes his responsibility to pay that particular check when presented, and amounts, in fact, to an acceptance. Such a marking is called certifying; and checks so marked are called certified checks.

A Check is a written order or request, addressed to a bank, or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay, on presentment to the person therein named, or bearer, or to such person, or order, a specified sum of money. The chief differences between checks and bills of exchange are: Ist. A check is not due until presented, and, consequently, it can be negotiated at any time before presentment, and yet not subject the holder to any of the equities existing between the previous parties. 2d. The drawer of a check is not discharged for want of immediate presentment with due diligence, while the drawer of a bill of exchange is. The drawer of a check is only discharged by such neglect when he sustains actual damage by it, and then only pro tanto 3d. The death of the drawer of a check rescinds the authority of the banker to pay it; while the death of the drawer of a bill of exchange does not alter the relations of the parties.) 4th. Checks, unlike bills of exchange, are always payable without grace. A bank check is substantially the same as an inland bill of exchange; it passes by delivery when payable to bearer, and the rules, as to presentment, diligence, of the holder, etc., which are applicable to one, are generally applicable to the other.'

Checks are in use only between banks and bankers and their customers, and are designed to facilitate banking operations. It is of their very essence to be payable on demand, because the contract between the banker and customer is that the money is payable on demand. A check on a banker is, in legal effect, an inland bill of exchange, drawn on a banker, payable to bearer, on demand, and subject, in general, to the rules which regulate the rights and liabilities of parties to bills of exchange." It is generally made payable to bearer, but its char

g-Sewall, Bank. See CHECKS. h-3 Johns. Cas. 5, 9: 9 B. & C. 388: Chitty Bills (8 Ed.) 546. i-6 Cow. 484; Kent Comm. Lect. 44, 5th Ed. p 104, 2: 3 Johns. Cas. 5, 259; 10 Wend. 306: 2 Hill, 425. J-3 Man. & G. 571, 573 K-25 Wend. 672; 6 Hill, 174. 1-4 Har. & J. 276; 3 Johns. Cas. 5; Id. 259; 6 Wend. 445; 20 ld. 192: 6 Cowen, 484; 1 Blackf. 104: 4 Seld. 190. m21 Wend. 372; 7 T. R. 419, 426; 6 Wend. 443: 6 Cow. 484: 2 Selden, 412. n-10 Wend. 304. 0-6 Wend. 445. The party receiving a check has till the following day to present it, where there are ordinary means of doing so. 4 Bingh. (N. C.) 268; Eng. C. L. R. Vol. 33: 5 Scott, 694, S. C. And the holder has the whole of

acter is not changed by the fact that it is made payable to the order of the person to whom it is given. Being indorsed, the holder, if he would preserve his right to resort to the drawers and indorsers, must use the same diligence in presenting it for payment and in giving notice of the drawer's default, as that would be required of him as the holder of an inland bill. A check ought to be drawn within the State where the bank is situated, because if not so drawn they become foreign bills of exchange, subject to the law merchant. This law requires that they be protested, and that due diligence be used in presenting them, in order to hold the drawer and indorsers. It is not necessary to use diligence in presenting an ordinary check in order to charge the drawer, unless he has received damage by the delay. It must be presented for payment within a reasonable time; and it is asserted that the holder is required to use even greater diligence in presenting it for payment than is necessary in presenting common inland bills of exchange. The maker's or drawer's undertaking is not that he will pay the amount, but that the bank will pay it on presentment. The drawer of a check is not discharged by the holder's failure to present it in due time, unless he have sustained actual prejudice, as by the failure of the banker.

This

In common with other kinds of negotiable paper, they must contain an order to pay money, and words of negotiability. enables a bona fide holder, for value, to collect the money without regard to the previous his tory of the paper. They must be properly signed by the person or firm keeping the account at the banker's; and it is part of the implied contract of the banker that only checks so signed shall be paid.

Checks being payable on demand are not to be accepted, but presented at once for pay

ment.

Giving a check is no payment unless the check is paid." But a tender was held good when made by a check contained in a letter, requesting a receipt in return, which the plaintiff sent back, demanding a larger sum without objecting to the nature of the tender.

A check cannot be the subject of a gift in prospect of death, unless it is presented and paid during the life of the donor; because his death revokes the banker's authority to pay." Though in such a case a check has been considered as of a testamentary character.x

Checks written across with the word "memorandum " or "mem." are given thus, not as banking hours of the next day within which to present it, Chitty, 385; 2 Taunt. 388; 2 Camp. 537 P-21 Wend, 372: 20 Id. 205; 10 Id. 306; 12 Story C. C. 502, 512. q-2 Pet. 586; 2 N. Y. 425; 5 Johns. Cas. 2; 1 Ga. 304; 2 Mood. & Rob. 401: 3 Scott (N. R.) 555; 3 Kent Comm. (5th Ed.) 104, n. Story Prom. Notes, 492. 13 Wend. 549; 10 Id 304; 4 Due , 122. S-2 Wood & Rob. 401; 3 Scott (N. R.) 555; 7 M. & G. 10, 67: Eng. C. L. R. vol. 49: 9 Q. B. 52; Eng C. L. R. vol. 58 t-16 Pet. 1; 5 Johns. Ch. 54; 20 Johns 437; 3, 3 Ken Comm. 81. u-1 Hall, 56, 78; 4 Johns. 296; 7S & R. 116; 2 Pick. 204. V-3 Bouv. Inst. n, 2436. W-4 Brown Ch. 286. X-3 Curt. Eccl. 650.

r

CERTIFICATE OF DEPOSIT FORMS.
B. R. S. & Co., Bankers.
Place

Date D. R. has deposited with us dollars, payable to P. E. (or himself) or order (on return of this certificate). B. R. S. & Co.

A PROMISSORY NOTE is a written promise to pay a certain sum of money at a future time unconditionally."

A holder of a promissory note is one to whom a promissory note is indorsed for collection as an agent, for the purpose of transmitting notices."

A promissory note differs from a mere acknowledgment of debt without any promise to pay, as when the debtor gives his creditor an I. O. U. In its form it usually contains a promise to pay, at a time therein expressed, a sum of money to a person therein named, or to his order, for value received. It is dated and signed by the maker. It is never under seal.

But a

A note by two or more makers may be either joint or joint and several. A note signed by more than one person, and beginning, "We promise," etc., is a joint note only. A joint and several note usually expresses that the makers jointly and severally promise. note signed by more than one person, and begin. ning, "I promise," etc., is several as well as joint. So, a note beginning, "I promise," and signed by one partner for his copartners, is a joint note of all. A note in the form I promise," etc., subscribed by two persons, is a joint and several note.s Persons who sign their names to a note will be presumed to be joint makers in the absence of anything to the contrary on the face of the note. But one of the signers of a note, joint in form, is not estopped by its terms from showing that he is surety; such showing does not contravene the stipulations of the note.

No precise words of contract are essential in a promissory note, provided they amount in a y-Story Prom. Notes, 499. Z-4 Cal. 37; 29 Id. 503. -7 Id. 543. b-7 W. & S. 264; 2 Humph. 143: Wend. 675: Ala 263: 7 Mo. 42; 2 Cow. 536; 6 N. H. 364; 7 Vern. 22. -20 Johns. 372; 2 Hall, 112; 6 How. 248. d-See 2 Yerg. 50; 15 M. & W. 23; but see 2 Humph. 143 6 Ala. (N. S.) 373 e-Peake, 130; Holt N. P. C. 474; so a bond in the singular number, executed by several, is several as well as joint; 1 Lutw. 695; 1 Camp. 403; 10 East. 264 S. C. f Johns. 543-7 Mass. 58; 2 Bailey, 88; 19 Barb. S. C. 248: 6 Foster, 76. h-20 Ala. 270; 1 Carter (Ind.) 391. i-5 Kas. 483. j-And where for an executed consideration, a note was

legal effect to a promise to pay. A promise to deliver the money, or to be accountable for it, or that the payee shall have it, is sufficient.

Although a promissory note, in its original shape, bears no resemblance to a bill of exchange, yet when indorsed it is exactly similar to one; for then it is an order by the indorser of the note upon the maker to pay the indorsee. The indorser is, as it were, the drawer; the maker, the acceptor; and the indorsee, the payee. Most of the rules applicable to bills of exchange equally affect promissory notes.

There are two principal qualities essential to the validity of a note: 1. That it be payable at all events, and not dependent on any contingency.m 2. It is required that it be for the payment of money only," not in bank notes." A promissory note payable to order, or bearer, passes by indorsement, and the holder And may bring suit on it in his own name. though a simple contract a sufficient consideration is implied from its nature.P

Married Woman's Note in N. Y. Place, Date For value received, I promise to pay A. B., or order, dollars, one year from date with inAnd I hereby charge my individual property and estate with the payment of this M. W.

terest.

note.

On the day of —, I, M. R., of, in county, State of -, promise to pay P. E. (or order), at the Bank, in interest at the rate of

dollars, with per cent. per annum, from date (or maturity), until paid, and costs and expenses of collection, if not paid when due; in (part or full) payment for (state what), the title of which shall remain in said P. E. until this note is fully paid. M. R.

"

Promissory Note-On Demand. Place, Date On demand I promise to pay P. E., or order (or bearer), dollars, for value received. M. R. given, expressed to be "for £20, borrowed and received," but at the end were the words, "which I promise never to pay, the word never was rejected, 2 Atk. 32; 4 Camp. 115; Bayley, 5 Ed. 5; 6 B. & C. 433: 13 Eng. C. L. 227. K-Chitty Bills, 53, 54. 1-4 Burr. 669; 4 T. R. 148; 3 Burr. 1224. m-20 Pick. 132; 22 Id. 132. n-3 J. J. Marsh. 170, 542; 5 Ark. 441; 2 Blackf. 48: Bibb. 503; 9 Miss. 393; 3 Pick. 541; 4 Hawks. 102; 5 How. 382. 0-10 S. & R. 94; 4 Watts, 400; 11 Vt. 268; Contra 9 Johns. 120; 19 Id. 144. p-See 5 Com. Dig. 133, 2, 151, 472: Smith Merc. L. 6, 3 e l.; 4 B. & C. 235; 1 Carr. & M. 16.

Bank, in (or other place, dollars, with interest, etc. M. R.

Promissory Note-Judgment Note. A judgment note is a promissory note given in the usual form, and containing, in addition, a power of attorney to appear and confess judgment for the sum therein named. It usually contains a great number of stipulations as to the time of confessing the judgment," against appeal and other remedies for setting the judg ment aside, and other conditions.P

- or

Common Form-With Waiver. Place, Date. after date promise to pay bearer, dollars, with interest at the rate of per cent. per annum, from maturity until paid, and without defalcation. And do hereby confess judgment for the above sum, with interest and costs of suit, a release of all errors and waiver of all rights to inquisition and appeal, and to the benefit of all laws exempting real or personal property from levy and sale.

(Signed) A. B. [Seal.]
Promissory Note–Judgment Note.
With Waiver and Power of Attorney.
See AGENCY, ATTORNEYS, above.
Place, Date

after date I (or we), the undersigned (of -), promise to pay dollars to the -Bank of -, or order at their office in for value received, with interest at the rate of per cent. per annum, from maturity until paid.

(Signed)

A. B.

Know all men by these presents: That I, the undersigned, am justly indebted to the Bank of -, upon a certain promissory note of even date herewith, for dollars, value received, with interest at the rate of per cent. per annum, from maturity until paid, and maturing

Now, therefore, in consideration of the premises I do hereby make, constitute and appoint

, or any attorney of any court of record, to be my true and lawful attorney, irrevocably for and in my name, place, and stead, to appear in any court of record, in term time or in vacation, in any State or Territory of the United States, at any time after the said note becomes due, to waive the service of process, and confess judgment in favor of the said bank, or their assigns, upon said note, for the amount thereof and interest thereon, together with costs and dollars, attorneys' fees; and also to file a cognovit for the amount thereof, with an agreement therein, that no proceeding in error or appeal shall be prosecuted, or bill of equity filed to interfere in any

n-11 Ill. 623. -See 9 Johns. 80: 20 Id. 296; 2 Cow. 465; 2 Penn. St. 501; 15 Ill. 356. p-See GENERAL STATUTES. q-Byles, 92; 8 Cowen, 88; 31 Penn. St. 506. A promissory note imports a consideration, and none need be proved unless it be impeached. 6 Vt. 165; 17 Johns. 301; 7 Id. 321; 2 Bailey, 451; 6 N H. 511: 9 Johns. 217; 9 Conn. 545 Minor, 362; 5 Wheat. 277: 5 Porter, 154; 5 Ala. 383. r-7 Cowen, 322; 7 Johns. 26; 14 Pick. 1987 Watts. 130; 3 Watts & Serg 266. Barn. & Cress. 203; 3 Johns. Cas. 5. 259; 4 Hill, 442. t1 Johns. Cas. 51: 3 Id. 29; 8 Johns. 454: 5 Wend. 600. u-3 Cowen, 252. The indorsee who takes the note after it is due takes it subject to all the equities between the

8-5

manner with the operation of said judgment, and also to release all errors that may intervene in the entering up of said judgment or issuing execution thereon: to waive all benefits which ( may be entitled to by virtue of any homestead, exemption, appraisement, or valuation law, now, or hereafter in force, wherever such judgment may be entered or enforced, hereby ratifying and confirming all that my said attorney shall or may do, by virtue hereof. Witness my hand this day of A. D.. (Witness) (Signed) A. B. [Seal.] CONSIDERATION. Negotiable notes and bills of exchange are presumed to have been made for a valid and adequate consideration, and whether they purport to have been given for value received or not, it is unnecessary for the plaintiff in the first instar ce to allege or prove a consideration. In this respect they differ from other parol contracts.

Between the original parties the consideration may be inquired into, but the burden of proof lies on the defendant to rebut the presumption raised by implication of law. The consideration may also be inquired into when the plaintiff takes the note after it becomes due, or has been dishonored ; for in such cases the purchaser takes it subject to every defence which existed against it before it was negotiated; but it lies with the defendant to show that the plaintiff received it after it was due.▾ The consideration may also be inquired into where the plaintiff purchased the note or bill, knowing it to be void in the hands of the party from whom he received it, either on account of fraud, failure, want, or illegality of consideration. When a purchaser takes a bill or note with notice of the facts impeaching its validity, or with sufficient information on the subject to put him upon his inquiry, he cannot recover upon it as a bona fide holder. though he has such notice, yet if he derives his title from a bona fide holder for value, he may recover thereon.b

W

But

The law presumes in favor of negotiable paper a good consideration, until the contrary appears; it presumes that the holder is the owner until circumstances of suspicion are shown; it presumes in relation to indorsed paper that the indorsement was made before it became due;e that the party in possession took the same in the usual course of business for value; that the maker of a note is the primary debtor; and that the acceptor of a bill of exchange is primarily liable thereon.

Parol or verbal evidence is not admissible to contradict or vary an absolute engagement to pay money on the face of a bill or note, but it is admissible to establish a defence on the ground of want, failure, or illegality of considoriginal parties to the note, including want or failure of consideration. 15 Pick. 92; 6 Id. 259; 14 Id. 293; 4 Mass. 370: 5 Id. 543; 7 Watts, 130. v-8 Wend. 600. w-2 Adol, & Ellis (N. S.) 196, 211; 19 Me. 102: 14 Id. 449. X-12 Pick. 545; 5 Wend. 20; 8 Conn. 336. y15 Johns. 270. Z-9 Shepley, 488. a-1 Denio, 583. b. 19 Me. 102; 14 Id. 449: 2 Adol. & Ellis (N. S.) 196, 211. C-9 Johns. 217: 12 Wend. 484; 13 Id. 557; 8 Cowen, 77; 16 N. Y. 129. d-3 Johns. Cas. 5.259; 18 Barb. 344: 2 Camp. 5 4 Sand. 97 e-8 Wend, 600; 7 Paige Ch. 615. f-6 Hill, 336; Chitty Bills, 69, Story Notes, 20 7, 81. g-1 Denio, 116. h-4 Dana, 352; 2 Burr, 674: Dougl. 294; 8 Esp. 47.

FAILURE OF. An entire failure of consideration has the same effect as the original and total absence. The failure of consideration, either in whole or in part, may be set up as a defence between the original parties, or any other than a bona fide holder without notice.P But in order to constitute a perfect defence or bar to a recovery in such an action, a total failure of the consideration must be shown.¶ Where a note is given on a sale of goods for the purchase money, the rule is, that if the chattel be of no value to any one, it cannot be the basis of a bargain. If it be beneficial to the purchaser, he certainly ought to pay for it; if it be a loss to the seller, he is certainly entitled to remuneration for his loss. Though the thing sold possess only a speculating value, still if there be no deception practised, and the purchaser does not exact a warranty, but gives his note for the price, there is not what the law regards as a failure of consideration. There is a plain distinction between mere inadequacy and a total or partial failure of consideration. Inadequacy of consideration is not in itself any defence to an action on a bill or note." But a total failure or want of consideration is a perfect defence, and a partial failure is, to that extent, a good defence.

GOOD FAITH. No one can be considered a bona fide holder of a negotiable note or bill of exchange unless he receives the same in good faith, or, as it is sometimes expressed, without notice of the facts and circumstances going to impeach its validity or diminish the amount recoverable thereon. Though he takes the note before due, he cannot recover on it if he takes it with the knowledge that it has been paid. A person cannot be deemed a bona fide holder who takes partnership paper for the debt of an individual partner."

ILLEGALITY OF. It is a fundamental principle that contracts which have for their object anything repugnant to the general policy of the law, or are contrary to the provisions of a statute, are void; and when a note or bill is founded upon or given to secure the perform

i-Chitty Bills, 142; 1 Tyrw. 84; 5 Denio, 514.-5 Denio, 514. K-5 Vt. 114, 152; 5 Denio, 516; 1 Hill, 116. 1-1 B. & Ald. 223. m-10 B. & C. 729. n-1 Cromp. & Jer. 234; 1 Tyrw. 84. 0-2 C. & M. 516; 6 C. & P. 316; 5 M. & W. 7. p-4 N. H. 444; 6 Id. 447: 1 Bailey, 517; 1 Conn. 432; 10 Johns. 198; 6 Pick. 497; 13 Wend. 605; 2 Root, 53: 2 Wend. 431: 3 Id. 236; 4 J. J. Marsh, 154; 2 Hill, 606; 17 Wend. 188; 2 McLean, 464: 3 Dev. 390; 6 How. (Miss.) 106; 24 Me. 289; 22 Pick. 166; 8 S. & Marsh. 332. q-25 Wend. 107; 11 Conn. 432; 11 Shepley, 284: 14 Pick. 293; 5 Humph. 496; 4 Conn. 428. Nothing less than a total failure of the consideration can be shown in bar of a recovery of a note or bill, 10 Barn. & Cress. 877: 19 Johns. 113; 24 Wend. 97: r-23 Pick. 283. S-2 Hill, 656; 8 Conn. 469. t-1 Hill, 606. - Stark. 51; 21 Wend. 50,. v-11 Johns. 128. W-4 Johns. 251; 7 Wend. 158: 6 Duer, 309. Johns. 399. This is a rule as well in law as equity, ex turpi contractu actio non oritur, 19 N. Y. 37; 4 N. H.

X-2

ance of such a contract, neither or the parties to the transaction can enforce it against the other. If part of the consideration of a bill or note be fraudulent or illegal, the instrument is vitiated altogether. Where parties have woven a web of fraud or wrong, it is no part of the duty of courts of justice to unravel the thread as between the immediate parties to the instrument. If a bill originally given upon an illegal consideration be renewed, the renewed bill is also void, unless the amount be reduced by excluding so much of the consideration for the original bill as was illegal.

Contracts made in furtherance of immorality, or designed to facilitate and continue an immoral course of life, are illegal and void; as, where rooms are let for the purpose of prostitution, or notes and bonds are given to secure the continuance of illicit intercourse. But past illicit intercourse is not an illegal consideration for a bond or other specialty to indemnify the injured party where executed for that purpose alone. So, contracts for sale of libelous or immoral and obscene works, or for the commission of an unlawful act; and contracts of indemnity against the consequences of an unlawful act, are illegal and void, and, consequently, no action can be sustained upon a promise based thereon.

Agreements for the general restraint of trade are illegal and void, on the ground of public policy; but a partial restraint, not injurious to the public, founded on a fair and beneficial consideration, is valid.'

In

It is a general rule of commercial law that the illegality of the consideration of a bill or note will not invalidate it in the hands of a bona fide holder if taken in the usual course of trade, unless made void by statute.m general, no person is entitled to be considered. the bona fide holder of negotiable paper unless he acquires the same before it becomes due in good faith and for value."

VALUE. On a question of title, where negotiable notes or bills have been misappro priated, lost, or stolen, if a subsequent holder takes them innocently for a full or valuable consideration by giving money, or money and goods for them, in the usual course of trade, he is entitled to recover on them. As between him and the real owner the equities are equal,

385; 6 Bing. 321. V-2 Johns. Cas. 58; 5 Johns. 327. Z-2 Burr. 1077; 3 Taunt. 226; 5 C. & P. 19; 1 M. & R. 100: S. C. Story Notes, 190. a-7 Foster, 230. b. 14 Johns. 465; 9 Shepley, 488; 5 Cowen, 547: 13 Barb. 5333 Eng. L. & Eq. 416; 10 Foster, 540; 2 Gray, 258. C-2 B. & Ald. 588; Russ 293: 2 Stark. 237. d-2 B. & Ald. 588; 1 Russ. 293; 2 Stark. 237; Bayley (6th Ed.) 527. e-1 Esp. 13. f-5 Ves. 291; 5 Cow. 253: 4 Denio, 439. -13 S. & R. 29: Chitty Con. 660-661; 1 Johns. Ch. 329; 8 Ohio St. 265. h-4 Esp. 97; 13 Barb. 533 -10 Wend. 384. j-4 N. H. 385; 5 Johns, 327: 6 Binn. 321. K-3 B. 322; 21 Wend. 157; see CONTRACTS. 1-4 East. 190; 1 P. Wms. 181; 6 A. & E. 438: Id. 959; 33 Eng. C. L. R. 98, 254: 7 Cow. 307; 9 Mass. 522; 5 T. R. 118; 6 Seld. 241. m-2 Hill, 449. n-1 Čamp 10; 4 Greenl. 415 13 Peters, 56; 1 Johns. Cas. 55; 4 Mass. 370; 8 Id. 418; 5 Johns. 118. 0-20 Johns. 637: 15 Id. 231; 15 Id. 270: 5 Wend. 566; 6 ld. 615; 9 Id. 172: Id. 170; 21 Id. 499; 24 Id. 115: 2 Hill, 30; 1 Denio, 583.

no knowledge of these facts, for a valuable consideration, in the usual course of business, his title is good, and he shall recover the amount. Where a note or bill has been diverted from its original destination, in violation of the agreement upon which it was made or indorsed, the holder cannot recover upon it against the accommodation maker or indorser, without showing that he received it in the

WANT OF CONSIDERATION. A valid and sufficient consideration is the very essence of every contract not under seal; and promissory notes and bills of exchange are no exception to the general rule. Where a note is made for the accommodation of the payee, it is selfevident that no action can be sustained thereon in the name of the payee against the maker.t No more can the drawer of a bill maintain an action thereon against the drawee who has accepted the same for his accommodation." Between the parties to the transaction the making of such a note or the accepting of such a bill is a mere loan of credit, designed to enable the borrower to raise money, either generally in the market or in a particular manner; and, until the bill or note is negotiated, no obligation attaches to the instrument. A note made for the accommodation of the payee has no legal inception until it is transferred for value. The maker of a note," the drawer of a check,* an indorser, and the acceptor of a bill, for the accommodation of another party, without restriction in respect to the use which is to be made of the paper, authorizes the accommodated party to make any use of it of which the paper is capable; to deliver it for future advances, as collateral to or in payment of an antecedent debt, or he may get it discounted and appropriate the proceeds. But in order to recover on such paper, which has been misappropriated, the plaintiff must have received it in good faith. Evidence that he gave value for it is prima facie proof of good faith, and whatever shows him to have acquired the paper in bad faith, or with notice of facts impeaching its validity, will defeat his right of recovery. So, if a bill or note be lost or stolen, and afterward negotiated to one having

P-3 Burr. 1516; 1 Burr R. 452. q-7 C. & P. 633. r-See authorities reviewed in 6 Hill, 93. S-Chitty Con. 27, 28: 25 Eng. L. & Eq. 371. t-7 T. R. 121 5 Bing. +32: 3 Burr, 1568: 23 Wend. 311. u-9 B. & B. 241; 1 Mees. & Wels. 212; 9 B. & C. 241. V-3 Sand. Ch. 77: 11 Ohio, 62; 18 N. Y. 327. w-1 Bosw. 335: 5 Paige, 509; 2 Bosw. 248. X-6 Duer, 587. y-2 Paige, 509: 5 Duer, 87; 20 Conn. 475. 2-5 Sand. 7; 2 Id. 105. a-18 N. Y. 502. b-1 Bosw. 335; 2 Id. 248: 2 Paige, 509: 34 Penn. St. 138. e-6 Duer, 587; 5 Sand. 7; 29 Conn. 475 d-5 Wend. 600; 11 Johns. 128; 12 Id. 300; 15 Id. 170; 2 Id. 50: 8 Wend. 478; 1 Denio, 583; 5 B. & Ad. 909; 13 A. & E. 784 5 Duer. 462; 1 Id. 309. e-1 Burr. 452, 2 Doug. 633; 3 Burr. 1516. f-10 Johns. 231; 15

able consideration. And, in general, where the holder takes a note or bill after it is due, he takes it subject to every defence existing against it in the hands of the person from whom he receives it, because he acquires it out of the ordinary course of business, and after it has been dishonored.h

The

An exchange of notes for the same amount made by two firms of the same tenor is, in legal effect, a sale. So, when a person gives his own note in exchange for another note, he is a purchaser for value. So, cross acceptances for mutual accommodation are, respectively, considerations for each other. A fluctuating balance may form a consideration for a bill. same general rules as apply to the nature of the consideration for other simple contracts, are also applicable to the various contracts on a bill or note. Consideration is, in general, either some detriment to the plaintiff, sustained for the sake or at the instance of the defendant, or some benefit to the defendant moving from the plaintiff. It is not necessary that the consideration should move to the defendant personally; if it moves to a third person by his desire or acquiescence, that is sufficient. Therefore, the debt of a third person is a good consideration to support a contract on a bill payable at a future day. Thus a note cannot be supported as a gift, for a gift is not consummate and perfect until the delivery of the thing promised, and until then the party may revoke his promise."

From whatever cause arising, the want of consideration will defeat a recovery on a note, bill, or check, as between the original parties. Want of consideration destroys the validity of a note without any regard to the bona fides of the transaction. Fraud destroys the contract. But if the party defrauded would disaffirm the contract, he must do so at the earliest prac ticable moment after the discovery of the cheat, and must return whatever he has received upon it. But if the thing received be entirely valueless, or a different thing from that contracted Id. 270; 5 Wend. 266; 6 Id. 615: 9 Id. 172: 37 Penn. St. 367: 5 Duer, 260; 27 Conn. 381; 18 Mees & Welsby, 494: 13 Gray, 7. -3 Barb. Ch. 403; 5 Paige, 650; 1 Johns. Cas. 51: 8 Johns. 454; 24 Wend. 97. h-1 Taunt, 224; Chitty Blis, 217, 219: 7 Johns, 363; 36 Penn. St. 285; 38 Id. 307. - Denio, 187, and cases there cited. j-4 Barb, 304; 1 Hill, 513; 4 Duer, 331. K-7 T. R. 565; 3 East 72: 1 B. & Ad. 521; 2 Denio, 621; 3 Hill, 504; 1 Cush. 168: 6 Ga. 472; 13 Ala. 346, 1 Doug. 188: 4 Harring. 311. 1-1 B. & C. 122; 5 M. & Ry 89, S. C.; C. M. & R. 849; 5 Tyr. 255, S. C. m-2 C. & M. 368. 5 Tyr. 320, S. C.; 4 Johns. 296; 6 N. H. 386. n-7 Johns. 25; 5 B. & C. 501; 8 D. & R. 163; 23 Barb. 565. 0-17 Johns. 301; 8 Id. 120; 9 Wend. 273: 5 Eng L. & Eq. 408.