#### B. E. Brooks v. Martin Brady, Administrator of the Estate of William Morris, Deceased.

1. Evidence—Written Instruments—Admission Without Proof of Execution.—Under Sec. 84 of Ch, 110, R. S., entitled “ Practice,” the following instrument: §105.70. “ Charleston, Ills., July 15, 1889.

Pay William Morris one hundred and five and 70-100 dollars with eight per cent interest. B. E. Brooks,” is admissible in evidence without proof of the signature of the maker.

3. Consideration—Notes and Bills Presumed.—It is not necessary to offer proof of the consideration of a written instrument in the nature of a note or check. A consideration is to be prima fade presumed.

8. Promissory Note—What is, as Between the Parties.—An instrument in the following language: “Pay William Morris one hundred and five and 70-100 dollars with eight per cent interest, B. E. Brooks,” as between the parties to it is in legal effect a note.

4. Gaming and Betting— What is Not an Illegal Consideration.— B. and M. jointly bet and lost a sum of money on the result of a presidential election. M. having paid more than his proportion thereof, B. gave him his note to adjust the difference between them. It was held, that the consideration of the note was not illegal, as in violation of the statute relating to gambling contracts and obligations.

5. Set-Off — Unliquidated Damages. — Unliquidated damages not growing out of the plaintiff’s claims are not the proper subject of set-off.

Memorandum.—Assumpsit on a note. Error to the Circuit Court of Cumberland County; the Hon. Leonidas L. Logan, County Judge, presiding. Heard in this court at the November term, 1893, and affirmed.

Opinion filed February 12, 1894.

The opinion states the case.

Hughes & Hayes and Levi N. Brewer, attorneys for plaintiff in error.

P. A. Brady, attorney for defendant in error.

Mr. Presiding Justice Boggs

delivered the opinion of the Court.

The judgment from which this writ of error is prosecuted was rendered upon the second count of a declaration, which set out in hcieo verba and declared upon an instrument in writing, of which the following is a true copy, viz. s

*156$105.10. Charleston, Ills., July 15,1880.

Pay William. Morris one hundred and five and 10-100 dollars with eight per cent interest.

B. E. Brooks.

Its execution was not denied by a verified plea and the court correctly ruled that under the provisions of Sec. 34 of the Practice Act, it was admissible in evidence without proof of the signature of the maker. Mor was it necessary to off*, r proof of the consideration, for that is to b e prima facie presumed, whether the instrument is to be regarded as a bill or note (1 Parsons on Motes and Bills, page 193) oras an order or check (11 Amer. & Eng. Ency. of Law, page 224). It is insisted that the instrument is an imperfect check or order for the payment of money, the name of the drawee being-omitted, and that recovery could not be had upon it except on proof that payment had been demanded of and refused by the intended drawee, or upon surrender of the check or order and proof of the original indebtedness, which its payment would have discharged. We think that as- between the parties the instrument was in legal effect a note. It is not important to inquire whether it is a negotiable promissory note, for the case is in legal contemplation as between the original parties to it. Evidence was offered tending to show that the plaintiff in error and Morris, the payee of the instrument, had jointly bet and lost a sum of money on the result of the presidential election of 1888, and that the instrument was executed to adjust the loss between them, Morris having paid more than his proportion thereof; counsel insist that such a consideration is illegal, being, as they conceive, in violation of the statute relating to gaming contracts and obligations. The consideration, even conceding that the evidence sufficiently established it to be as appellant contends, was not within the inhibition of the statute. It was not money won by the payee of the maker by betting with him upon the result of the election, but an amount paid by the payee to another for the maker after the loss had been sustained. We do not understand that such a consideration is within the statute. Sec. 131, Chap. 38, B. S. Moreover the *157case was heard by the court without a jury, and no proposition, to be held as the law of the case, was presented to the court. We therefore assume that the court entertained correct views of the law. Armstrong v. Barret, 46 Ill. App. 193, and cases there cited. The proof relied upon to show that the consideration of the note grew out of a bet on the election was slight, and we could not say that the court erred in finding as a matter of fact that it had not been proven; but if it had, it was not, as we have already said, within the statute. The plaintiff in error ought to set off damages arising out of an alleged breach of the covenants of warranty, in a deed executed by the payee in the instrument sued on, to him for certain lands, the title to a portion of which it was claimed had failed. The damages were unliquidated' and grew out of a transaction wholly disconnected with the plaintiff’s cause of action. The court properly ruled that such unliquidated damages were not the proper subject of set-off. Clause v. Bullock Printing Press Co., 118 Ill. 612. No other error is alleged to have intervened. The judgment of the Circuit Court is affirmed.