The  Court  of  Exchequer  refused  a  rule,  and  the  defendant  ap-
pealed.^

The  judgment  of  the  court  (Keating,  Lush,  Quain,  and  Arch-
ibald, JJ. ;   Lord  Coleridge,  C.  J.,  dissenting)  was  delivered  by

Lush,  J.  This  is  an  action  on  a  check,  dated  the  14th  of  Febru-
ary, 1873,  drawn  by  the  defendant  on  Messrs.  Barnett,  Hoare  &  Co.,
for  payment  of  £1,999.  3s.  to  Lizardi  &  Co.  or  bearer.  The  material
plea  is  the  fifth,  which  alleges  that  there  never  was  any  consideration
for  the  defendant's  making  or  paying  the  check,  and  that  the  plain-
tiffs have  always  held  the  same  without  having  given  any  consideration.
We  think  it  must  be  assumed  on  the  facts  stated  in  the  case  that^
if  the  action  had  been  brought  by  Lizardi,  the  defendant  would  have
had  a  good  answer  to  it,  on  the  ground  either  of  fraud  or  failure  of
consideration,  it  matters  not  which.  The  only  question  therefore  is
whether,  under  the  circumstances  stated,  the  plaintiffs  are  to  be  con-
sidered the  holders  of  the  check  for  value.
The  material  facts  bearing  on  this  question  may  be  briefly  stated.
