is only required to give affirmative proof of consideration after the defendant has given evidence tending to rebut the prima facie case which the production of the instrument makes out.

SECTION II.

BY WHAT LAWS THE LEGALITY OF CONSIDERATION IS

DETERMINED.—CONFEDERATE OBLIGATIONS.

§ 168. The laws in force at the time a note is given determine its legality and effect; and where a law prohibiting the sale of spirituous liquors has been repealed, it does not thereby validate a note given in violation of the statute when it was in force; and a renewal of the note will be tainted with the original illegality.”

§ 169. The legality of the consideration of a contract is to be determined by the laws of the State or country where the contract is made, and not by those of the State or country where the suit is brought. The rules of every nation from comity admit that the laws of every other nation in force within its own limits ought to have the same force everywhere, so far as they do not prejudice the rights of other governments or their citizens. The rule is founded

* Byles (Sharswood's ed.) (*116), 221, note d.
* Holden v. Cosgrove, 12 Gray, 216. See $S 871, 970.

* See chapter XXVII, on Conflict of Laws, $ 865 et seq. Thorington v. Smith, 8 Wall., 11. Chief-Justice Chase, after speaking of the supremcy of the Confederate Government in the seceded States, says: “It must follow as a necessary consequence from this actual supremacy of the insurgent government, as a belligerent within the territory where it circulated, and from the unity of civil obedience on the part of all who remained in it, that this currency must be considered in courts of law in the same light as if it had been issued by a foreign government temporarily occupying a part of the territory of the United States. Contracts stipulating for payments in this currency can not be void for that reason only, as made in aid of the foreign invasion in the one case, or of domestic insurrection in the other. They have no necessary relations to the government, whether invading or insurgent.' They are transactions in the ordinary course of civil society, and, though they may indirectly and remotely serve the ends of the unlawful government, are without blame, except when they have been entered

not merely on the convenience, but on the necessity of nations; for otherwise it would be impracticable for them to carry on an extensive intercourse or commerce with each other,' or even for social order to exist.

$ 170. Confederate transactions.—These principles have been applied by the courts of the United States, since the close of the war against the Confederate States, to instruments executed during the war for the loan of Confederate States treasury notes, or which were payable in that medium—it having been the only currency in general circulation within the Confederate lines; and also to those executed in payment of hires or purchase money of slaves after slavery had been abolished.

The United States Supreme Court has held unanimously that a promissory note payable in Confederate States treasury notes, made between parties within the lines of the Confederate States during the war, was not executed upon an illegal consideration, unless it was executed with the intent to aid the Confederate cause ; ? and the courts of some of the reconstructed Southern States and of the other States have adopted similar views. Confederate currency having been the only medium of exchange in the Confederate lines for the better part of the war, any other view would seem peculiarly rigorous and cruel, and utterly opposed to that spirit of comity and humanity which should ameliorate as far as possible the disadvantages and hardships of conflicts

But partisan judges have not been lacking in the conquered States, and their extreme and violent

between nations.

into with actual intent to further invasion or insurrection. We can not doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation.” Approved in Cook v. Lillo, 103 U.S. (13 Otto), 793.

'Boyce v. Tabb, 18 Wall., 548. See § 866. 'Osborn v. Nicholson, 13 Wall., 656. *Rodes v. Patillo, 5 Bush (Ky.), 271; Rivers v. Moss, 6'Bush (Ky.), 600 ;

v. Rucker, 18 Grat., 426; Boulware v. Newton, Id., 708 ; Lohman v. Crouch, 19 Grat., 331 ; Magill v. Manson, 20 Grat., 527 ; Green v. Sizer, 40 Miss., 530; Murrell v. Jones, Id., 565.

Dearing

notions have found expression in decisions which will remain as an enduring stain upon the records of the American judiciary.

$ 171. Bonds issued by the convention of a secession State to raise revenues to carry on war against the United States have been held by the United States Supreme Court to be upon an illegal consideration.”

$ 172. In respect to promissory notes given for slaves, before President Lincoln's emancipation proclamation was issued, the Supreme Court of the United States has set the question of their validity at rest. It has been decided by that tribunal that a note dated March 26th, 1861, and given for a slave, could be recovered upon, notwithstanding that slavery was abolished on the first of January, 1862, and the contract of sale contained the warranty, “ the said negro to be a slave for life,”: and also notwithstanding the thirteenth

a amendment to the Constitution, made in 1865, by which it is ordained that “neither slavery nor involuntary servitude shall exist in the United States nor in any place subject to their jurisdiction.”

In the State tribunals of the Southern States, where this question has been of much consequence, conflicting views have been taken, but many of the cases concur in judgment with the Supreme Court of the United States, and in other

Note for loan of Confederate States treasury notes void : Lawson v. Miller, 44 Ala., 616; Calfee v. Burgess, 3 W. Va., 274; Prigeon v. Smith, 31 Tex., 171; Reavis v. Blackshear, 30 Texas, 753. Contracts solvable in Confederate money held void. Biossat v. Sullivan, 21 La. Ann., 565; Latham v. Clark, 25 Ark., 574. And this has been held to apply, although the paper, on its face, was payable simply in dollars. Donley v. Tindall, 32 Tex., 43.

· Hanauer v. Woodruff, 15 Wall., 439.

• Osborn v. Nicholson, 13 Wall., 655; Boyce v. Tabb, 18 Wall., 548. In Fitzpatrick v. Hearne, 44 Ala., 171, it was held that a warranty on the sale or slaves " that the title of said slaves was warranted for the life of said negro slaves," was not broken by the subsequent emancipation of the slaves. To same effect, Hand v. Armstrong, 34 Ga., 232; Wilkinson v. Cook, 44 Miss., 367 ; McNealy v. Gregory, 13 Fla., 417.

* McElvain v. Mudd, 44 Ala., 48; Thompson v. Warren, 5 Cold., 644; Dowdy v. McClellan, 52 Ga., 408 ; Calhoun v. Calhoun, 2 S. C., 283; contra, Laprice v. Bowman, 20 La. Ann., 234 ; Lytle v. Wheeler, 21 La. Ann., 192.

a

States of the Union, both before and since the war, the principles of these decisions have been asserted."

§ 173. A recovery upon instruments executed for slaves, or for Confederate money, has been sought to be prevented by articles in the new Constitutions of some of the States, denying jurisdiction to the courts to enforce them ; or in some such language declaring that they shall be deemed void. But such declarations, whether of a State Constitution or of a legislative enactment, evidently violate the provision of the national Constitution prohibiting the passage of any law impairing the obligation of a contract. The United States Supreme Court has so held," and the decision is obviously just; but some of the Southern tribunals have held otherwise.8

In some of the States it has been held that notes for slaves sold after Lincoln's emancipation proclamation were as valid as those for slaves sold before, and according to the principles of the text, which the authorities amply sustain, there can be substantially no difference in the cases, the Confederate Government being in power and protecting slavery within its lines as a legal institution. But the Supreme Court of the United States, in the case above quoted, especially withheld any opinion as to cases arising after emancipation.

SECTION III.

BETWEEN WHAT PARTIES THE CONSIDERATION IS OPEN TO

INQUIRY.

§ 174. The same rule which admits inquiry into the consideration of negotiable paper between the original payor

* Roundtree v. Baker, 53 III., 241, in which case it was held that an obligation for the purchase of a slave in Kentucky, when slavery was legal, might be sued upon in Illinois, and the subsequent abolition of slavery did not affect the note.

* White v. Hart, 13 Wall., 646 ; Boyce v. Tabb, 18 Wall., 548; McElvain v. Mudd, 44 Ala., 48; McNealy v. Gregory, 13 Fla., 417.

• Graham v. Maguire, 39 Ga., 531; Green v. Clark, 21 La. Ann., 567 ; Lawson v. Miller, 44 Ala., 616; Barrow v. Pike, 21 La. Ann., 14. McElvain v.

Mudd, 44 Ala., 48; Hall v. Keese, 31 Tex., 504.

and payee extends to admit such inquiry in any suit between parties between whom there is a privity. That is to say, between the immediate parties to any contract evidenced by the drawing, accepting, making, or indorsing a bill or note, it may be shown that there was no consideration (as, that it was for accommodation);' or that the consideration has failed, or a set-off may be pleaded ; but as between other parties remote to each other, none of these defences are admissible. It becomes important then to determine who are to be regarded as the immediate parties, or parties between whom there is a privity, to a negotiable instrument, and who are remote. Among the former may be classed : (1) The drawer and acceptor of a bill,” or (2) The drawer and payee : of a bill as a general rule; (3) The maker and payee of a note ;4 and (4) The indorser and immediate indorsee of a bill or note.5

But the want of consideration, or the failure thereof, can not be pleaded in a suit brought : (1) By.an indorsee against the maker of a note ;6 (2) By an indorsee against a prior, but not his immediate indorser •' nor (3) By the

· payee against the acceptor of a bill, as a general rule. They

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Murphy v. Keyes, 39 N. Y. Sup. Ct., 18. ? Thomas v. Thomas, 7 Wisc., 476. Where it was held that acceptors could show as against drawers that they accepted for too much. Spurgin v. McPheeters, 42 Ind., 527; Trego v. Lowery, 8 Neb., 238.

• McCulloch v. Hoffman, 17 N. Y. S. C. (10 Hun.), 133 ; Spurgin v, McPheeters, 42 Ind., 527.

Puget de Bras v. Forbes, i Esp., 117; Jeffries v. Austin, 2 Stra., 674.

Easton v. Pratchett, 1 Cromp. M. & R., 798 ; 2 Cromp. M. & R., 542; Holiday v Atkinson, 5 B. & C., 501 ; Abbott v. Hendricks, 1 Man. & G., 791 ; Klein v. Keyes, 17 Mo., 326; Barnett v. Offerman, 7 Watts, 130 ; Clement v. Reppard, 15 Penn. St., III; Spurgin v. McPheeters, 42 Ind., 527 ; Bank of the Ohio Valley v. Lockwood, 13 W. Va., 392.

• Price v. Keen, 40 N. J. L. R., 332; post, $ 814; Etheridge v. Gallagher, 55 Miss., 464.

Etheridge v. Gallagher, 55 Miss., 464; 1 Parsons N. & B., 176. & Laflin and R. Powder Co. v. Sinsheimer, 48 Md., 411; Robinson, J.: “The payee or holder gives value to the drawer, and if he is ignorant of the equities between the drawer and acceptor, he is in the position of a bona fide indorsee.” Hoffman & Co. v. Bank of Milwaukee, 12 Wall., 181. In this case a consignor who had been in the habit of drawing bills of exchange on his consignee, with bills of lading attached to the drafts drawn, drew bills on him with forged bills of

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