Henry Richards, Kt. C.J. and Piggott, J.
1. This appeal arises out of a suit on foot of two promissory notes. The defendant pleaded want of consideration, and also that the consideration was void because it represented gambling losses. The court of first instance decreed the plaintiffs' suit. The lower appellate court, after referring an issue, dismissed the plaintiffs' claim. We think that we must accept the acts of the case as found by the court below which are as follows:
2. The plaintiffs, the defendant and others were gambling at the house of the plaintiffs, during the Dewali. The defendant incurred losses, partly to the plaintiffs and partly to other persons. It is impossible to say exactly how much his losses were, and how much of those losses were losses to the plaintiffs, but there can be no doubt that the finding of the court is to the effect that the consideration for the promissory notes was at least in part losses to the plaintiffs in respect of gambling bets. The court below was unable to ascertain (chiefly because the plaintiff would not come forward with a true and accurate statement) how much of the alleged consideration represented money which had been borrowed from the plaintiffs, by the defendant. Under the circumstances he dismissed the suit, and we think under the circumstances he was quite justified in so doing.
3. Illegal consideration is no consideration, and in the present case, even if part of the consideration was losses to third parties, the consideration was not severable. The learned advocate on behalf of the appellants quotes the decision in Juggernauth Sew Bux v. Ram Dyal (1883) I.L.R. 9 Calc.,791 and contends that it was not open to the defendant to show that the consideration for the promissory notes was money lost in gambling. In that case it was sought by oral evidence to show that a certain contract was of an entirely different nature from what it appeared to be on the face of it. Section 92 of the Evidence Act, after providing for the exclusion of oral evidence in respect of certain contracts, provides that 'any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law'. In our opinion, where it can be shown that the consideration was losses in gaming, this is 'want or failure of consideration' within the meaning of proviso (1) to Section 92 of the Evidence Act. We dismiss the appeal with costs.