vidual on a bank, payable on demand; or, in other words, it is an order upon a bank purporting to be drawn upon a deposit of funds, for the payment of a certain sum of money to a person named, or to order or bearer, on demand. As between himself and the bank, the drawer of the check has the power of countermanding his order of payment at any time before the bank has paid it, or committed itself to pay it. 5 Am. & Eng. Enc. Law (2d Ed.) 1079, and cases cited. When the check, however, is certified by the bank, the power of revocation by the drawer ceases, and the bank becomes the debtor. I Morse, Banks, § § 398, 399. A cashier's check is of an entirely different nature. It is a bill of exchange, drawn by the bank upon itself, and is accepted by the act of issuance; and, of course, the right of countermand, as applied to ordinary checks, does not exist as to it. 2 Rand. Com. Paper, § 588; i Daniel, Neg. Inst. 444; I Pars. Notes & B. 288. The bank, in such case, is the debtor, and its obligation to pay the cashier's check is like that of the maker of any other negotiable instrument payable on demand. As applied to the case under consideration, the rights and obligations of the plaintiff and defendant as to the cashier's check in question were those of a payee and maker of a negotiable promissory note payable on demand.

What was the legal effect of plaintiff's indorsement, being based upon a gambling transaction? The solution of this question, under the authorities, is difficult, by reason of the difference in statutes on the subject, and also because of the conflict in the common law, both in England and in the United States. At early common law in England, gambling contracts, when fair and free from cheating, were assumed by the courts, without discussion, to be valid. Later the courts were disinclined to entertain actions based on gambling contracts; but still later they returned to the original rule that such contracts were valid and actionable, excepting therefrom, however, certain classes of wagering contracts. In the United States, in a

number of the states it is held that the common law of England upon gambling contracts is unsuited to the conditions and institutions, and that all gambling contracts are void by their common law. In others it is held that the English statutes against gambling passed prior to the American revolution are in force in their jurisdiction as common law, or as adopted by statute in general terms. Still another class of states hold that the common law of England on the subject of gambling contracts is in force, and that gambling contracts not of the forbidden classes are valid, and enforceable by their common law. See cases cited in 14 Am. & Eng. Enc. Law (2d Ed.) 586, 590. In Illinois, under the peculiar statute of that state, it has been held that an indorsement of commercial paper on a gambling consideration is void, and, although in the hands of an innocent holder for value, the legal consequence of such an indorsement is of no more effect than a forged indorsement (Chapin v. Dake, 57 Ill. 295, 11 Am. Rep. 15; and the property in the instrument remains in the payee unaf

fected by such indorsement (Bank v. Spaids, 8 Ill. App. 493). So, also, under the statutes of Mississippi declaring all gambling contracts utterly void, the maker of a note payable to an individual named or bearer, when sued by another than the party named as payee, may successfully defend by showing that the plaintiff won the note on a wager. Holman v. Ringo, 36 Miss. 690; McAuley's Adm'r v. Mardis, Walk. 307; Adams v. Rowan, 8 Smedes & M. 624 Lucas v. Ward, 12 Smedes & M. 157; Martin v. Terrell, Id. 571; Smither v. Keys, 30 Miss. 179. The same is true under the Iowa statute, and a promissory note so given is void even in the hands of an innocent holder for value. Bank v. Alsop, 64 Iowa, 97, 19 N. W. Rep. 863. See, also, Conklin v. Robets, 36 Conn. 461; Swinney v. Edwards, (Wyo.) 55 Pac. Rep. 306, 80 Am. St. Rep. 916. In this state there is no statute declaring in express terms that all contracts in furtherance of gambling are void, as in the above states. But gaming itself is made unlawful by chapter 37 of the Penal Code (Revised Codes 1899), which chapter, in its prohibitions, extends to the game at which the plaintiff herein lost the check in suit. It is entirely clear, and, indeed, it is not controverted, that the transaction in which the indorsement of the note by plaintiff to Maxwell was made was one prohibited by express law, and that the consideration for such indorsement was illegal. Of what legal effect, then, we may ask, was the indorsement? Did it have the effect of transferring the check to Maxwell as an innocent purchaser, and enable him to legally enforce payment from defendant, notwithstanding the unlawful means by which the possession and indorsement were obtained? Defendant's counsel contend that it did have such effect, and that, had the defendant refused to pay him, it could, under the law, have been compelled to do so, even though it had notice of the entire gambling transaction. This contention we cannot sustain. It is not, however, without specious reason and respectable authority to support it. The well-settled rule of law and equity is invoked by the defendant, “In pari delicto potior est conditio possidentis," under which neither party to an illegal contract may be aided by the courts, either to set it aside or enforce it; or, as was said in Roll v. Raguet, 4 Ohio, 400, 22 Am. Dec. 759: "Whenever the agreement is immoral, or against public policy, a court of justice leaves the parties as it finds them. If the agreement be executed, the court will not rescind it; if executory, the court will not aid in its execution." And in Atwood v. Fisk, 101 Mass. 363, 100 Am. Dec. 124: "It will not recognize a right of action founded on the illegal contract in favor of either party against the other." This court had occasion to apply the rule to a Sunday transaction, which was alleged to have been illegal, in Rosenbaum v. Hayes, 10 N. D. 311, 86 N. W. Rep. 973, and we there held that, so far as the transaction was executed the law leaves the parties where their unlawful acts have placed them. In addition to the cases cited in the opinion in that case, see also, Kahn v. Walton, 46 Ohio

St. 195, 20 N. E. Rep. 203; Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347; St. Louis, V. & T. H. R. Co. v. Terre Haute & I. R. Co., 145 U. S. 393, 12 Sup. Ct. 593, 36 L. Ed. 748, 15 Am. & Eng. Ec. Law (2d Ed.) 999. Under the same authorities, and for the same reasons, so far as it is executory, the contract is not enforceable. 2 Pom. Eq. Jur. § 939. It is contended that the indorsement and delivery of the check in this case was an executed transaction, and that, accordingly, under the foregoing rule, the plaintiff lost all of his rights in the check, and that Maxwell acquired the same. In support of this position counsel for appellant cite Reed v. Bond, (Mich) 55 N. W. Rep. 619, and Kahn v. Walton, (Ohio) 20 N. E. Rep. 203. Reed v. Bond is similar to the case at bar, and is squarely in point and upholds counsel's view. It rests, however, upon the declaration that the gaming contract was fully executed. The unsoundness of this contention lies in the assumption that the contract of indorsement was valid and complete. "An indorsement is a written contract, the terms of which, though usually omitted for the convenience of commerce, are certain, fixed, and definite, and not the less perfectly understood because not expressed in words." It, "like any other written promise or agreement, requires two things besides the mere writing to constitute a contract, viz., a delivery and a consideration," and "the delivery and consideration are always open to impeachment." (4 Am. & Eng. Enc. Law [2d Ed.] 485, 487, and cases cited); and the general rule that parol evidence is inadmissible to contradict, vary, or add to a written contract does not preclude the admissibility of such evidence to show the illegality of a contract. In such case the evidence is not admitted to vary or control the contract, but to show that in contemplation of law, in consequence of the proven illegality, no contract at all ever had any existence; that it was void ab initio." And it is further held that "when the defendant does not set up the defense of illegality, but such illegality appears from the case as made by either the plaintiff or defendant, it becomes the duty of the court sua sponte to refuse to entertain the action." 15 Am. & Eng. Enc. Law, 1015, and notes; Johnson v. Willard, 83 Wis. 420, 53 N. W. Rep. 776. It is clearly the plain policy of the law not to extend aid to either party to an unlawful tránsaction, and to refuse to recognize rights or entertain actions which arise from acts which are under its condemnation.

Does the application of these principles to the facts of this case make Maxwell an indorsee in due course, and clothe him with all of the rights of a good-faith purchaser for value? A negative answer to this question must be given. In the first place, the contract of indorsement was defective, and subject to impeachment, by reason of the admitted illegality of the consideration,—this upon elementary principles of the law of contracts. The defective indorsement did not, in our opinion, constitute a contract to which the principle invoked could apply. It is clear that Maxwell could not suc

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cessfully maintain an action against the plaintiff upon the indorsement; and it would seem that the courts would not aid him to enforce payment from defendant for the sufficient reason that his right of action would arise out of the indorsement made in the unlawful gambling transaction. On the other hand, plaintiff is not seeking the aid of the court in this action to enforce a gambling contract, or of any right growing out of the indorsement, but is merely attempting to enforce the defendant's promise to him contained in the cashier's check, which is not tainted by any illegality whatever. His cause of action does not arise in the gambling transsaction; whereas the defense of payment, which is relied upon to defeat a recovery by plaintiff, rests entirely upon an affirmance of the transfer of the check in the gambling transaction, for on no other ground could Maxwell, after notice, have the right to receive or enforce payment. As has been already stated, the courts will not recognize and enforce rights arising on illgotten title. Kirkpatrick v. Clark, 132 Ill. 342, 24 N. E. Rep. 71, 8 L. R. A. 511, 22 Am. St. Rep. 531; Miller v. Marckle, 21 Ill. 152; Riedle v. Mulhausen, 20 Ill. App. 68; Cochran v. Strong, 44 Ga. 636; Express Co. v. Duffey, 48 Ga. 358. On principle therefore, we have reached the conclusion that the title, rights, and possession of the check by Maxwell, under the facts as they appear, are directly analogous to those of the finder of a lost note which has been indorsed by the payee, or of such an instrument in the hands of one who has stolen it. Prima facie, every holder of a negotiable instrument is deemed a holder in due course, both under the law merchant and under the statute of this state. See § 59 of chapter 100 of the Civil Code (Rev. Codes 1899), which is the chapter governing negotiable instruments executed after July 1, 1899; 2 Rand. Comm. Paper, § 730; Million v. Ohnsorg, 10 Mo. App. 432. And "the mere possession of a negotiable instrument which is payable to the order of the payee, and is indorsed by him in blank, or of a negotiable instrument payable to bearer, is in itself sufficient evidence of his right to present it, and to demand payment thereof. And payment to such person will be valid, unless he is known to the payor to have acquired possession wrongfully." Daniel, Neg. Inst. § 573, and cases cited in notes. If any doubt could exist as to the correctness of our conclusion that Maxwell's title to the check was imperfect, and the contract of indorsement legally unenforceable either against the indorser or the payor, it is set at rest by section 55 of the act above referred to, which reads as follows: "The title of a person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear or unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud." The above statute was in force when the transaction in question took place, and is controlling. Under said section Maxwell's title was defective for two reasons: First, he procured the sig

nature of plaintiff by unlawful means; and, second, he obtained the check for an illegal consideration. Further, the fact is established that he was not a holder in due course, and had not the rights of such a holder, for the reason that he did not take the instrument in good faith and for value, which is one of the requirements to render a holder a holder in due course under section 52 of the chapter above referred to.

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The rule as to the payment and discharge of negotiable instruments is that payment of the bill or note must be made to the rightful holder or his authorized agent. "In general, a payment is valid as against other parties when made in good faith, and in ignorance of all facts which impair the holder's title. If payment is made to one who holds under a blank indorsement, his possession will be presumptive evidence of his title and right to receive the money. Any one in possession is entitled prima facie to receive payment of a note payable to bearer, or to 'A., or bearer.' If it is so payable, even a payment made in good faith to a thief or finder who is in actual possession will be good. * But a payment made through negligence to one who is neither the rightful holder nor a bona fide purchaser before maturity, after notice of loss, will not be sufficient." 3 Rand. Com. Paper, § 1444, and cases cited. And the same author says in § 1467 that, "if the indorsement is for an illegal consideration, such as a gambling debt [and that is this case], payment made to the indorsee after notice of that fact will be of no avail as against the indorser:" citing Bank v. Spaids, 8 Ill. App. 493, and Wheeler v. Winn, 38 Vt. 122. Under the above doctrine, which appeals to us as both just and sound, it is apparent that the defense of payment to Maxwell, the indorsee-which is the only defense in the caseturns entirely upon the question as to whether such payment was made in good faith, and without notice of the defect in Maxwell's title; for, as before stated, payment by the maker to a party who claims to be a bona fide holder is not sufficient to protect the maker against the claim of the real owner, when made after notice. Bainbridge v. City of Louisville, 83 Ky. 285, 4 Am. St. Rep. 153.

The remaining question relates to the sufficiency of the evidence as to defendant's notice. The jury found that the defendant had notice, and the trial court refused to grant a new trial upon the ground of the alleged insufficiency of the evidence to sustain such finding. Our inquiry is limited to ascertaining whether there is any legal evidence in the record fairly tending to sustain this finding. "Under an established rule of practice, this court will not ordinarily disturb a verdict upon a mere question of fact, where there is substantial evidence upon which the verdict may rest." Heyrock v. McKenzie, 8 N. D. 601, 80 N. W. Rep. 762; Taylor v. Jones, 3 N. D. 235, 55 N. W. Rep. 593; Black v. Walker, 7. N. D. 414, 75 N. W. Rep. 787; also, Flath v. Casselman, 10 N. D. 419, 87 N. W. Rep. 988. We find the evidence contained in the record sufficient to support the finding of the jury on this