#### Samuel Gould, John D. Dyer and Thomas D. Dyer *versus*John E. Armstrong.

Although a promise to pay a sum of money, founded upon the forbearing to prosecute a suit, which could not be maintained, is void, for want of consideration; yet, the defendant, in order to avail himself of such a defence, must show *conclusively,*that the suit, which was the foundation of the promise, could not have been prosecuted to effect.

The plaintiffs, as the holders of certain notes or memorandums, payable to bearer, brought an action of assumpsit, to recover their amount. At the trial, the defendant offered to show, that the notes wore given for a consideration, made unlawful by an act of congress ; but he offered no evidence to prove that the plaintiffs were acquainted with the consideration for which the notes were given. Held, that as the act of congress did not make the notes *void,*the evidence offered by the defendant, to defeat the recovery, was inadmissible.

Assumpsit to recover of the defendant the sum of 100 dollars. The declaration contained separate counts upon *eight*notes or memorandums, of the following tenor: “If James Harrison shall “ go on board such vessel as I shall provide, I promise to pay to “ him, security, or bearer, 15 dollars on receipt of the same, being “ delivered on board. New-York, September 9 th, 1828.

(Signed) John E. Armstrong.”

These eight notes were given by the defendant to eight different individuals, four of them being for the sum of *fifteen*dollars each, and the others for *ten*dollars each.

The declaration also contained a count, setting forth that the plaintiffs had commenced an action against the defendant in the Marine Court, for the recovery of the sum of *$*100, due from the defendanttothe plaintiffs, which was pending at the time of the making of the promises therein set forth. That the defendant, afterwards, on the 1st day of November, 1828, in consideration that the plaintiffs would “ cease to prosecute the said action, and stay all further *267"proceedings therein, undertook and promised the plaintiffs, to pay them the said sum within one week, next following.” It then averred that the plaintiffs did cease to prosecute, &c., and that, although the stipulated time had elapsed, the defendant had n*o*t paid the said sum, nor any part thereof, &c. To these counts, there were also added counts for work and labor, goods sold, &c.

To the first eight counts, the defendant filed a general demurrer, and to the remaining three counts, pleaded the general issue. The cfofeadifehereupon, entered a *nolle prosequi*upon the counts demurred to, and joined issue upon the others.

At the trial, the plaintiffs proved, that they commenced a suit in the Marine Court, against the defendant, on the notes or memoranda above specified. That the defendant, while the suit was in progress, called on the attorney of the plaintiffs, who showed him the notes. The defendant admitted that they were signed by him, and promised, that if the plaintiffs would cease to prosecute said suit, he would pay them the 100 dollars in the course of the ensuing week. In consequence of this promise, the suit, in the Marine Court, was not further prosecuted.

The counsel for the plaintiffs having rested his cause upon this proof, the defendant moved for a non-suit; but the Chief Justice, before whom the cause was tried, overruled the motion. The defendant then offered to prove, that the notes were given by him, in consideration that the persons named in them, (being American citizens,) should proceed to sea, as seamen, on board an armed vessel belonging to the government of Buenos Ayres: which government was, at the time the notes were given, a belligerent nation, at war with the emperor of Brazils. This evidence being objected to, a verdict was taken for the plaintiffs, subject to the opinion of the court, as to its admissibility, and upon the whole case, either party having leave to turn the same into a special verdict, or bill of exceptions.

*Mr. Cutting,*for the defendant, now contended,

I. That the plaintiffs ought to have been non-suited at the trial, there being no consideration to support the promise, contained in the special count, upon which the issue was joined. That promise was founded upon *268an agreement on the part of the plaintiffs, to surcease a suit, in which no recovery could have been had. The notes or memoranda were not negotiable, and were dependent on contingencies: bearer of the note was to go on board ; secondly, a vessel was to be procured; and, thirdly, the bearer was himself to be delivered on board. The suit in the Marine Court could not have been sustained, and the discontinuance of it, therefore, did not form any consideration for the defendant’s promise. *[4 East.*463.]

II. The evidence offered by the defendant, to show the illegality of the transaction, ought to have been admitted. It was material to the issue, and the facts, if proved, would have defeated the action. The very act of engaging the seamen was illegal. They themselves could not have maintained a suit on their notes, and the plaintiffs have no rights which the law can recognize. *[Laws of the U. S. 20th April,*1818, *Sec.*2.—4 *Wheat. R.*298, 311.—9 *Cranch. R.*365. 6 *Wheat.*152. 162. 14 *John R.*273. *Gow. on Part.*168.]

*Mr. Geo. Sullivan, contra,*for the plaintiffs, contended,

that as the notes did not> upon their face, show or import any illegality, the holders were to be presumed innocent of their origin, and to have taken them *bona fide,*for a valuable consideration. If the defendants had intended to avail themselves of this ground of defence, they should have offered to show that the plaintiffs were acquainted with the purposes, objects, and considerations for which the notes were given. Not having done so, the fa’cts which the defendant offered to show, do not amount to a defence, if proved. The acts of Congress do not make the notes void, although they may punish the offenders: in the hands of an innocent holder, they would be perfectly valid.

But the consideration stated in the special count, was proved at the trial, and it is entirely sufficient to sustain the action. The defendant had the power of judging of his own rights, and if he chose to make the promise, and abandon his defence in the court below, he had a right to do so. But as he has by that means interfered with the plaintiffs’ rights, he is bound by his promise.

*269*Per Curiam.*

The motion for a non-suit, in this case, was properly overruled at the trial. It was made before the consideration, for which the notes or memoranda were given, was proved, and their illegality from that source, if they were in fact illegal, could not be known until it was proved by the defendant.

But it is contended, that the .plaintiffs are not entitled to recover at all, since the facts are disclosed,—because it is *now*shown, that the instes were given for an illegal consideration; or that there should be a new trial, at all events, since the defendant offered to prove the facts in relation to the consideration, but was refused permission to do so, by the presiding Judge.

The plaintiffs undoubtedly had a cause of action upon the notes which they held ; not in their own names, perhaps,—but, as the bearers or holders of the notes, they could sustain an action in some form or other, to recover their amount.

From the action brought by the plaintiffs, in the Marine Court, the defendant was protected by the agreement. "'"A promise to forbear from prosecuting a suit which could not be maintained, would, of course, be without consideration, and so not bindings But there is nothing to show that the suit in the Marine Court could not have been maintained. The plaintiffs, for all that appears, might have proved an express promise to themselves, which might have sustained their action to the fullest extent. At all events, the contrary is not proved; the defendant has not shown that the action in the Marine Court could not have been maintained, and, of course, there was a sufficient consideration to support his promise of payment, founded upon the forbearance to prosecute the suit in the Marine Court.

As to the illegality of the consideration, founded upon the alleged violation of the acts of congress, there is nothing shown which can connect the plaintiffs with those transactions. They are, apparently, innocent and *bona fide holders*of the notes, for a valuable consideration, and without notice. If this be so, the illegality of the original transaction, cannot affect the notes in their hands. As the acts of congress do not make the notes void, no defence, of this kind, can protect the defendant against the claims *270of an innocent and *bona fide*holder. If the defendant had proved that the plaintiffs were aware of the consideration upon which the notes were given, and had been warned not to trust to them, then defence, such as it is, might properly have been interposed. But without expressing any opinion upon the question, as to the legality or illegality of the notes, we are of opinion, that the evidence offered by the defendant, at the trial, was inadmissible, and that there must be judgment for the plaintiffs upon the case.

*Judgment for the plaintiffs.*

[F. B. Cutting, *Atty. for the deft.]*