
    Timothy Hill, Administrator, versus William Buckminster, Administrator.
    The admissions of an administrator, a party to a suit, may be given in evidence by the opposite party.
    A promissory note expressed to be for value received may be avoided, as between the payee and the maker, by proving that there was no consideration for it originally ; and a note given in renewal of one so voidable, is likewise without consideration.
    Assumpsit upon a promissory note given by Eli Bullard, the defendant’s intestate, to Mary Hill, the plaintiff’s intestate, for 59 dollars 40 cents, dated December 27, 1814, payable on demand with interest, and purporting to hare been given for value received.
    
      At the trial, before Morton J., the defence set up against the note was a want of consideration. The defendant read the deposition of Adam Bullard, brother of Eli, in which it was testified, that the deponent himself, Eli, and some of his other brothers, after the death of their father, gave to their sister Mary Hill, each a note for ten pounds, because she did not receive so much of their father’s estate as each of the brothers. The defendant then proposed to prove that the plaintiff, since the commencement of this action, acknowledged that the note in suit was given solely as a renewal of the ten pound note ; but the judge being of opinion that the confessions of the plaintiff were not admissible, and that the fact, if proved, would not be a defence against this action, rejected the evidence and directed the defendant to be called. But if this evidence was admissible, and the facts proposed to be proved, together with those before proved, amount to a defence, the default was to be taken off and a new trial granted.
    
      Buckminster, pro se.
    
    A promise made without considera-
    tion may be avoided. Rann v. Hughes, 7 T. R. 350, note ; Hunt v. Bate, Dyer, 272; 2 Christian’s Bl. 445, in notis; 3 Bos. & Pul. 252. A moral obligation is not sufficient to support an express promise in writing. Metcalf’s Yelv. 41 ; Smith v. Ware, 13 Johns. R. 259 ; Mills v. Wyman, 3 Pick. 207. A negotiable promissory note expressed to be for value received, may be avoided by proof of want of consideration. Gates v. Winslow, 1 Mass. R. 65 ; Thacher v. Dinsmore, 5 Mass. R. 302 ; Boutell v. Cowdin, 9 Mass. R. 254 ; Barker v. Prentiss, 6 Mass. R. 434; The People v. Howell, 4 Johns. R. 333; Pearson v. Pearson, 7 Johns. R. 26 ; Schoonmaker v. Roosa, 17 Johns. R. 301. These principles show that this action cannot be sustained.
    The plaintiff objected at the trial, to our proving the confessions he had made, “ because he made them as administrator.” ' On this point the Court are referred to Baxter v. Penniman, 8 Mass. R. 134 ; Brown v. Anderson, 13 Mass. R. 203 ; Emerson v. Thompson, 16 Mass. R. 429 ; Atkins v. Sanger, 1 Pick. 192, [2d ed. 194, n. 1 ]
    
      Hoar, contra,
    
    did not insist on this last objection, though he said that to make the rule safe, that the confession of a trustee, who is the nominal party to a suit, is to be received in evidence, the court ought to see whether the confession is of a fact peculiarly within his knowledge, and whether it is against his interest; as was the case in Atkins v. Sanger ; here the plaintiff had no interest, except that he might by possibility be liable for costs ; but it does not appear that the estate of his intestate is insolvent.
    On the point of nudum pactum, he referred the Court to Bowers v. Hurd, 10 Mass. R. 427, [Rand’s edit. 430, n. a;] Mills v. Wyman, 3 Pick. 207, [2d edit. 211, n. 1 ;] and Train v. Gold, ante, p. 380, and the authorities cited in those cases. And he contended that here the money was paid by giving the first note. But the case is still stronger, for the first note too was paid by giving the second. If the money had been actually paid when the first note was taken up, and had been immediately returned upon the new note’s being given, there could be no question of the sufficiency of the consideration as money lent; but it surely could not be necessary to go through this ceremony. Fisher v. Ellis, 3 Pick, 322 ; Maneely v. M’Gee, 6 Mass. R. 145 ; Goodenow v. Tyler, 7 Mass. R. 39 ; Chapman v. Durant, 10 Mass. R. 51.
    
      Buckminster, in reply.
    The case of Bowers v. Hurd was very different from this. There the promisor was under a strong moral obligation. It was a case too, substantially, of a donatio causa mortis. There was an actual delivery of personal securities to a large amount, to a friend, with an express injunction to pay the note. The objection to the validity of the note was merely formal. Suppose the note had run thus,— u In consideration of the services rendered me in my sickness by A. B., I promise to pay her 100 dollars, although she did not expect to receive wages for those services,” — no one would contend that it was nudum'pactum.
    
    Giving up a note inherently void for want of a consideration, cannot constitute a sufficient consideration for a new note. If the defendant’s intestate has once paid what he promised to give, let the plaintiff rest satisfied with that payment. But if the payment was only a fiction, the argument fails.
   Parker C. J.

It is conceded by the counsel for the plaintiff, that the confession of the administrator who is plaintiff in this action, was competent evidence ; and we think he is justified in such concession, for we do not find any case in which evidence of that kind has been rejected.

We are to consider then, that the defendant offered to prove that the plaintiff had admitted that the consideration of the note in suit was a former note given by the defendant’s intestate, which note, according to other testimony in the case, was given to the plaintiff’s intestate by Eli Bullard her brother, because she had not received so much of her father’s estate as her brothers had, and that her other brothers had each given her a similar note for the same cause. If we are to consider this a mere act of generosity on the part of the brothers, they not being indebted or in any manner obliged to pay any thing to their sister, they having a perfect and undisputed right to the portion of the estate given them b) their father, then it would follow that the note first given was without consideration, and so not recoverable. The case as reported is not explicit on this point. It may be, for aught appearing to the contrary, that the will of the father was disputed by the plaintiff’s intestate, and that she intended to contest the probate of it, and that to induce her to withdraw her objections, these notes were given. If such were the facts, they would constitute a sufficient consideration and the notes could not be avoided If the plaintiff is able to make out a case of the kind, on a new trial, he will have opportunity. But as the case now appears, we cannot think the default ought to stand, for it would seem that the only consideration for the note in suit was the preexisting note, which was wholly without a consideration sufficient to sustain an action ; and we cannot see that the plaintiff’s case is strengthened by the supervention of a second note.

We cannot consider the giving of the first note as a payment of the sum for which it was given, and the second note as therefore founded on a consideration as for money lent.

A negotiable promissory note given for a' debt is with us evidence of payment of the debt, but where there was no previous debt or diuand, the note given is nudum pactum.

In coming to this conclusion we undoubtedly overrule some of the expressions in the opinion, as reported, in the case ol Bowers v. Hurd, 10 Mass. R. 427, [see Rand’s edit. 430, n. a] ; though the case itself was rightly decided upon other principles. It is in that opinion stated, that to a promissory note, in which value is acknowledged to have been received, it cannot be objected in defence, between the original parties, that there was no existing consideration when the promise was made, though it would be competent to show that the consideration had failed or that it was illegal. But further opportunity to examine the cases has convinced us, that the opinion so expressed is untenable ; there being cases in the English and other books, which are. cases clearly of defence founded upon no consideration, rather than a failure of one once existing. This, though contrary to the usual principle of holding a party to his acknowledgment, must be considered as the law, and we cannot depart from it, however disingenuous such defences generally appear to be.

Default taken off and new trial granted. 
      
       See Whitcomb v. Williams, 4 Pick (2d ed.) 231, n. 1; Chapman v. Durant, 10 Mass. R. (Rand’s ed.) 51, n. a.
      
     
      
      
         Parish v. Stone, 14 Pick. 198; Amherst Academy v. Cowls, 6 Pick. 432, Copp v. Sawyer, 6 N. Hamp. R. 386; Horn v. Fuller, id. 512; Lawrence v. Stonington Bank, 6 Connect. R. 52; Slade v. Halsted, 7 Cowen, 322; Croupy v. Dufau, 13 Martin’s (Louis.) R. 90; Russell v. Hall, 2 id. 558; Rogers v. Waters, 2 Gill & Johns. 64; Bayley on Bills, (Phil, and Sewall’s 2d ed.) 531, et seq., notes; 3 Kent’s Comm. (3d ed.) 80.
      There is no difference between a failure and a want of consideration, either may be given in evidence against the payee or an indorsee with notice Le Blanc v. Sanglair, 12 Martin’s (Louis.) R. 402.
     