#### Joseph Babson *versus*Benjamin Webber.

In an action by the indorsee of a note against the maker, it is no defence that in con. sequence of the insolvency of the maker, the payee sold it to the plaintiff for much less than the sum due upon.it, and upon a verbal condition that the plaintiff would exact of the maker only about as much as the plaintiff gave for the note.

Assumpsit on a promissory note dated October 30th, 1822, for *0*500, payable to John Tyler on demand with interest, and indorsed to the plaintiff without recourse to the indorser. Plea, the general issue.

The defence set up was, that the note was fraudulently obtained by the plaintiff; and in support of it the defendant offered to prove, that the note was given for money lent, and that nothing had been paid on it; that in May 1826, the plaintiff offered Tyler 0100 for the note ; that Tyler said he would not part with it on any other condition, than that the plaintiff would promise not to trouble Webber ; that the plaintiff promised that he would not, and upon this condition Tyler sold it to the plaintiff, indorsed “ without recourse,” and the plaintiff paid Tyler *0*100 in June following; that the plaintiff said he was a particular friend of Webber, and he should get no more than he gave for the note, with possibly eight or ten dollars in addition ; that in December 1827, Tyler told the plaintiff, if he would give him back the note, he would repay him the *0100,*with interest, and all the cost he had been at ; that Tyler knew Webber could not pay the note, and he had determined to give it to him ; that Webber bad been a rich man, but had lost his property ; and that the plaintiff knew Webber had no property.

A default was directed, subject to the opinion of the whole Court.

*Saltonstall,*for the defendant,

cited *Broten*v. *Mott,*7 Johns. R. 361 ; *Charles*v. *Marsden,*1 Taunt. 224 ; *Smith*v. *Knox,*3 Esp. R. 46 ; *Wienholt*v. *Spitta,*3 Camp. 376 ; *Wiffen*v. *Roberts,*1 Esp. R. 261.

*Huntington,*for the plaintiff.

*167Wilde J.

afterwards drew up the opinion of the Court. There seems to be no legal ground on which the defence set up in this case can be supported. The action is founded on a negotiable promissory note of hand made by the defendant, and indorsed for a valuable consideration by the payee to the plaintiff. It was purchased at a large discount, it being understood that the defendant had been unfortunate in business, and that his ability to pay was doubtful. And it was offered to be proved at the trial, that at the time of the purchase the plaintiff represented himself as the friend of the defendant, and promised that he would not trouble him. This representation and promise were made to the indorser ; it was without any consideration moving from the defendant, and is altogether too loose and indefinite to discharge the defendant from his legal liability, or in any measure to impair the obligation of his contract. It does not appear that the defendant has offered to perform the conditions of the intended favor. But if such an offer had been made, the plaintiff would not have been bound in law to accept it. A promised favor or gratuity cannot be demanded as a legal right, and may be withdrawn by the promiser without subjecting him to the imputation of fraud. For however reprehensible it may be to excite false hopes, and although a promise merely voluntary may bind the conscience, yet it has no binding quality in law, and cannot be enforced. The breach of such a promise is not fraudulent, for in a court of law no one can be charged with fraud for asserting his legal rights. Courts of law can only look to the legal rights and liabilities of the parties. Now here a valid contract was proved, and a legal transfer. The defendant is justly indebted to the full amount of the note, and if he were able to pay, there certainly would be no hardship or injustice in compelling him to perform his contract. But his inability does not discharge or qualify his legal obligation. It follows, therefore, that the plaintiff is entitled to recover the full amount of the note. If this had been an accommodation note, it would materially vary the case ; in that case the plaintiff could only recover the amount paid for the note ; as was decided by Lord *Kenyon*in the case of *Wiffen*v. *Roberts,*1 Esp. R. 261.

*Motion to take off the default overruled.*