his father's will; the defendant as tenant of the plaintiff's brother, who claimed under a deed from the same father. No equitable relief was sought, and the terms on which such relief might, if at all, be given, was not the subject of the consideration. Some other cases have been cited involving the rights of an assignee of a non-negotiable chose in action, as Barry vs. Assurance Co., 59 N. Y., 587; Loomis vs. Ruck, 56 N. Y., 462. They have no application. Such an assignee stands in the place of his assignor, and is in no better position; he is put upon inquiry, and is affected by all the rights and equities of the original owner, and, indeed, he must always abide the case of the person from whom he buys. In the case before us, if it be assumed that, as between Richardt and the plaintiff, the deed of Mrs. Valentine was void, because obtained by some undue influence, or fraud, or by advantage taken of her condition, the title of Mrs. Austin to the property would be still good. If there be any concealed defect arising from the conduct of those who had held the property before she acquired it, of which she had no notice, that defect cannot prevail against her. Simpson vs. Del Hoyo, 94 N. Y., 193. She is conceded to have been a purchaser for a valuable and full consideration, without notice of any fraud vitiating the title of Richardt, and it necessarily follows that the defendant Lunt, who in perfect good faith, in actual ignorance of any fraud or circumstances tending to show fraud on the part of anyone connected with the title, advanced her money in reliance upon the record title, and possession corresponding to that title, should not be required to give up her mortgage security except upon payment. This the plaintiff does not propose to make. If the deed to

Richardt is, as the plaintiff contends, absolutely void, this action was unnecessary. If it was necessary, then the plaintiff must submit to rules by which courts of equity are guided. The judgments of the special and general terms do not conform to them. They should therefore be reversed, and the demurrer overruled, with costs in all courts to the defendant Lunt. All concur."

13

What will constitute fraud and duress has already been discussed under the subjects of contracts12 and torts, and the same principles will apply in determining whether a bill or note has been obtained by fraud or duress.

SECTION 49. FAILURE OF CONSIDERATION.

A negotiable instrument, like all other contracts, requires a consideration to support it. A consideration is presumed in the case of a negotiable instrument, but such presumption may be rebutted. Want, failure, or illegality of considerations are defenses between immediate parties, and a partial failure of consideration is a defense against an action brought by a bona fide holder for value."

SECTION 50. PAYMENT AND DISCHARGE OF INSTRU

MENT.

The payment of a negotiable instrument will always be a good defense between the immediate parties; before maturity, however, it will not be a defense against a purchaser for value who takes without notice of such payment. A payment of a note by an indorser will not extinguish the debt of the maker,

1 Vol. III, Sub. 6. 13 Vol. IV, Sub. 8.

" Davis vs. McCready, 17 N. Y.,

230.

unless the payment was made with this intention. The rules governing the rights of bona fide holders for value do not generally apply in the case of discharge by operation of law.

"A check is a draft or order on a bank or banker, purporting to be drawn on a deposit of funds, for the payment, at all events, of a certain sum of money to a certain person therein named, or to him or his order, or to bearer, and payable instantly on demand."1

SECTION 52. NEGOTIABILITY.

A check is not strictly a bill of exchange," but closely resembles an inland bill of exchange, payable on demand. It is governed by the same rules in relation to transfer, indorsement and negotiability. To be negotiable, however, a check must be in the form of a negotiable instrument; a check payable on a contingency is not negotiable.

SECTION 53. LIABILITY OF BANKS.

A check gives the payee no rights against the bank upon which it is drawn. The bank is under no liability to the payee for refusing to pay the check, even when the bank holds funds of the maker. In such a case the payee has a right of action against the