§ 187a. Marriage and promise of marriage are good legal considerations. Delay in fulfilling a promise to marry, and services rendered during the engagement, constitute a good consideration for a note;1 and in Scotland it has been held that a bill granted to a woman as a security for a promised marriage is valid, and may be enforced against the man if he break his promise. The meritorious consideration arising out of the duty of a husband to support his wife, is not sufficient in equity to sustain a note, given by the husband to the wife, as against the husband's collateral heirs. 2 § 188. Services.-Professional services, whether of a physician, attorney, or other person, in the learned or skilled professions, constitute, in general, a sufficient consideration for a bill or note; and consideration that the plaintiff, an attorney, should prevent the approval of the commanding general to the sentence of a military court condemning a guerrilla to death, is valid. Services of any business character are sufficient, and the inadequacy of the services, or the extravagance of the compensation, are not material." Services rendered in procuring a pardon for an offence have also been respected; though it has been said by some of the authorities that this would contravene public policy unless done by leave of the court." This is, we think, too severe. Services exerted in procuring the passage of an act through a legislative body are not recognized as the 1 Prescott v. Ward, 10 Allen, 203. 2 Thomson on Bills (Wilson's ed.), 72; citing Calder v. Provan (Scotch case). In Love v. Peers, 4 Burr., 2225, judgment was arrested on a bond which defendant had agreed to pay plaintiff if he married any one else but her. This case is clearly distinguishable from the principle of the text of Thomson, though he seems to think it in conflict. 7 Whitaker v. Whitaker, 52 N. Y., 368. 4 Thompson v. Wharton, 7 Bush (Ky.), 463. 'Cowee v. Cornell, 75 N. Y., 91. See also Barthe v. Lacroix, 29 La. An., 326 6 Meadow v. Bird, 22 Ga., 246. Chitty on Bills (13th Am. ed.), 100; Thomson on Bills (Wilson's ed.), 70; citing Stewart v. Earl of Galloway (Scotch case); Norman v. Cole, 3 Esp., 253. a legitimate exercise of the legal profession; and compensa tion for them can not be recovered. If contingent upon the passage of a bill, it would be obvious that they were illegitimate. A note to a railroad corporation, to be paid when the road is constructed, is upon sufficient consideration. The good-will” of a business is a sufficient consideration, although the business subsequently proves unsuccessful." $ 189. Accommodation bills and notes.—The mercantile credit of parties is frequently loaned to others by the signature of their names as drawer, acceptor, maker, or indorser of a bill or note, used to raise money upon, or other wise for their benefit. Such instruments are termed accommodation paper. An accommodation bill or note, then, is one to which the accommodating party has put his name, without consideration, for the purpose of accommodating some other party who is to use it and is expected to pay it. Between the accommodating and accommodated parties the consideration may be shown to be wanting, but when the instrument has passed into the hands of a third party for value, and in the usual course of business, it can not be ; & for as between remote parties, as we have already seen, the consideration which the plaintiff gave for his title, as well as that for which the defendant contracted the liability, must be impeached in order to defeat a recovery.? And the circumstance that the accommodation maker was 1 Marshall v. Balt. & O. R.R. Co., 16 How., 334 ; Clippinger v. Hepbaugh, 5 Watts & Serg., 315. See Sharswood's Legal Ethics (2d ed.), 99. Mills v. Mills, 40 N. Y., 543. *Rose v. San Antonio R.R. Co., 31 Tex. 49. See also Cedar Rapids Bank v. Hendrie, 49 Iowa, 402, disapproving Holliday v. Patterson, 5 Or., 177. *Smock v. Pierson, 68 Ind., 405. Byles on Bills (Sharswood's ed.) (*125] 237. Fant v. Miller, 17 Grat., 47. Robertson v. Williams, 5 Munf., 381. • Violett v. Patton, 5 Cranch (S. C.), 142; Yeaton v. Bank of Alexandria, Id., 49; French v. Bank of Columbia, 4 Cranch (S. C.), 59, 141 ; Fant v. Miller, 17 Grat., 47 ; Robertson v. Williams, 5 Munf., 381 ; Stephens v. Monongahela N. B., 88 Penn. St., 157 ; Bank of Ohio Valley v. Lockwood, 13 W. Va., 392. 'Ante, chapter vii, sec. 3, § 174. assured that the payee would protect it being known to the holder, does not weaken in any degree his title to recover. 1 $ 190. An accommodation indorser, who has paid the amount of the note to a subsequent indorsee, may recover of the maker without being subject to an offset of the maker against the payee, although he knew when he indorsed it that the maker was a creditor of the payee for an amount greater than the amount of the note. And the payee may recover against the acceptor, although he knew when he took the bill that the acceptance was for accommodation of another party. And it has been held that the accommodation payee and indorser may recover the full amount of the note, although he took it up by paying only a part. But this is, we think, erroneous. If one member of a firm obtains an accommodation note payable to himself, and afterward indorses it to a third person, who re-indorses it to the same firm, before maturity, and for good consideration, such firm can not recover against the maker, both parties being affected with the notice of a want of consideration.5 $ 191. An accommodation bill or note is not considered a real security, but a mere blank, until it has been negotiated, and it then becomes binding upon all the accommodation indorsers, in like manner and to the like effect as if they were successive indorsers ; but until it has been negotiated any party may withdraw his indorsement, acceptance, or other liability upon it, and rescind his engagement; and that right is not impaired by the circumstance that he may be indemnified by an assignment or other security." * Thatcher v. West River National Bank, 19 Mich., 196. * Barker v. Barker, 10 Gray, 339. Spurgeon v. McPheeters, 42 Ind., 527. *See chapter XLI, on Principal and Surety, § 1353, note. Quinn v. Tuller, 7 Cush., 244. • Whitworth v. Adams, 5 Rand., 342 ; Taylor v. Bruce, Gilmer, 42; May v. Boisseau, 8 Leigh, 164; Downes v. Richardson, 5 Barn. & Ald., 674. 5 May v. Boisseau, 8 Leigh, 164. 6 a $ 192. A person who indorses a note as an accommodation indorser for the payee, such note having been made by an accommodation maker, is subject to all the obligations and acquires all the rights of a party to negotiable paper. If obliged to take up such note, the accommodation maker can not set up fraud on the part of the payee, in the inception of the note, as a defence to his suit. $ 193. Fraudulent considerations.—“ Fraud cuts down everything,” is the sharp phrase of the Lord Chief Baron Pollock in an English case. And between immediate parties it at once destroys the validity of a bill or note into the consideration of which it enters. We have seen that if a horse or other personal chattel is warranted, and a bill, note, or check given for the price, the breach of the warranty is no defence to the action on the bill, note, or check (unless authorized by statute); but if it appear that the seller knew that there was unsoundness in the horse or other chattel, the element of fraud enters into the transaction. There was, in fact, no contract, and proof of the fraud at once defeats the action on the bill, note, or check. While inadequacy of consideration in the origin, or transfer of a negotiable instrument, is not, in itself, a defence to a suit upon it, yet it is oftentimes a circumstance strongly tending to show a fraud in the contract in which it was given or transferred. Evidence, therefore, in a suit on a note for certain pictures, is not admissible for the purpose of reducing the damages by proving that they were of inferior value ; but it would be good to show that they were fraudulently palmed off on the defendant.* A note is not vitiated by representations 1 2 3 ? Laubach v. Pursell, 35 N. J. L. R., 434. * Solomon v. Turner, 1 Stark., 51 (2 E. C. L. R.); see also Rudderow v. Huntington, 3 Sandf., 252, where goods were sold by an auctioneer with warranty or misrepresentation, and turned out to be spurious. Held no defence, it not appearing that the auctioneer knew the fact. Vol. I.-13 of what others say as to the value of property sold, unless · the payee making them knew they were false.1 If the defendant repudiate the contract on the ground of fraud, he must return the consideration-otherwise the plaintiff may recover on the bill or note.2 194. Fraud on third persons vitiates consideration.Fraud upon third persons vitiates a bill or note given in furtherance of it as between the parties; and the most fre quent instance in which fraud of this kind appears is in undue advantage claimed by one or more creditors when the debtor enters into a composition in which all appear to stand on the same footing. If the creditor refuses to enter into the agreement of composition until he receives a note for the residue of his debt, or receives a note as inducement to his consent, such note will be fraudulent and void; and the transaction is none the less fraudulent, and the note none the less void, because it is given after the composition was entered into, having been agreed on before, and the fraud extends to the composition notes given to such cred. itor, and vitiates them also. If the note for the residue be given by a third person who is indemnified by the debtor, it will be void. In these cases the creditor and insolvent 5 are "particeps criminis," but not "in pari delicto." It can never be par delictum when one holds the rod and the other bows to it. If a third person pay money for the debtor, in fraud of the composition, the debtor's note to such person for the amount is void. 10 When a note given 1 Archer v. Bamford, 3 Stark., 175; Macaltimer v. Croasdale, 3 Houst., 365; Sternbury v. Bowman, 103 Mass., 326; Heaton v. Knowlton, 53 Ind., 357. 'O'Shea v. Collier W. L. Co., 42 Mo., 397: Bastian v. Dreyer, 7 Mo. Ap., 332. Cockshott v. Bennett, 2 T. R., 763; Knight v. Hunt, 5 Bing., 432 (15 E. C. L. R.); Rice v. Maxwell, 13 S. & M., 289. 'Winn v. Thomas, 55 N. H., 294. Howe v. Litchfield, 3 Allen, 444; Took v. Tuck, 4 Bing., 224, Fay v. Fay, 121 Mass., 561. 'Dougherty v. Savage, 28 Conn., 146. 'Smith v. Cuff, 6 M. & S., 160. 10 'Bryant v. Christie, 1 Stark., 329. Bryant v. Christie, I Stark., 329. |