
    Noble vers. Smith.
    
      1767.
    
    Apartial Confideration of a Promissory Note cannot be shewn, in Reduction of Damages, in an Action by the Promisee.
    
      S. Quincy & J. Adams for Pl'ff. and J.Otis & R. Auchmuty for De't.
    
      Just. Trowbridge
    
    was for admitting the Evidence to go in, in Mitigation of Damages.
    Oliver, Just,
    
    was against the Admission.
    
      Cushing, Just.
    
    of the same Opinion.
    Lynde, Just,
    
    was of Judge Trowbridge’s Opinion, for Admission.
    
      The Chief Justice
    
    acknowledged the Point was of considerable Importance, and not without its Difficulties on either Side. Many Mischiefs and Inconveniences, he said, might arise, upon the Refusal or Admission of such Evidence. On the one Hand, a Note to a considerable Amount may be obtained upon a very trifling Consideration: It seems hard that an Inquiring into the Consideration should be denied, and that Evidence should be refused in Diminution of Damages. On the other Hand, People, upon a Settlement of Accounts, or Matters in Dispute, think themselves quite safe in taking a Note for the Sum due, and reasonably suppose all Necessity of keeping the Evidence of the Confideration at an End ; it would be big with Mischief to oblige People to Hand always prepared to contest Evidence that might be offered to the Sufficiency of the Consideration. This would be doubly strong in Favour of an Indorsee. Upon the whole, as many more, and, I think, greater Inconveniences would naturally asife, if such Examinations into the Consideration of Notes were admitted. I am therefore against it in this Case. 
    
    
      
      
        Vid. Styles, 58, Bruer & Sowthwell, and 1 Vin. 332, bot., 332 top. Actíons (of Assum.) (Y).
    
    
      
       The opposite doctrine has long been established. Parish v. Stone, 14 Pick. 210, Shaw, C. J.— “ It seems very clear that want of confideration either total or partial may always be shown by way of defence ; and that it will bar the action or reduce the damages, as it is found to be total or partial respectively.”
    
   THIS Cafe was very largely debated by the Council on both Sides; and the Question was, if Evidence might be given to the Jury, of a partial Consideration of a Note of Hand, upon which the Plaintiff, Promisee in the Note, had brought his Action.

The Books produced by the Bar were, Trials per Pais, 408; Cunningh. Bills of Exch. 122, 141 ; 1 Salk. 25, Meredith & Short; 2 Ld. Raym’d. 1430, 1431; 1 Stran. 674; 2 Bac. 4; Gilbt. Rep. 154.

The Council for the Defendant,

upon this Resolution of the Court, given seriatim, confessed Judgment for the Sum sued for.  