This case is clearly distinguishable from that of Allen v. Furbish, 4 Gray, 504, it being a case where the defence is .purely a failure or want of consideration. The admission of the proposed evidence is no more objectionable than would be the admission of evidence that an absolute note which was sought to be recovered by the payee was really an accommodation note, made at the request of the payee to enable him to raise money at the bank or elsewhere, but which, not having been used for that purpose, was kept in the hands of the payee. *100The proposed evidence does not tend to establish any condition or limitation to the terms of the note, but to show that there never was as between these parties any consideration for the note.

We should have had no difficulty in entering judgment for the defendant, but for the question of the competency of the particular evidence which is stated in the amendment to the award to have been admitted by the referees, and which, if erroneously admitted, does, by the terms of the award, require the same to be set aside. The fact that the defendant, on the same day and during the same interview in which the note declared on was executed, gave another note to another person, and that such person afterwards gave up that note as having been given without consideration, was in our view incompetent evidence, and ought not to have been admitted. We are precluded from considering this as merely irrelevant evidence, and therefore furnishing no sufficient ground for setting aside the award, inasmuch as the referees have given effect to it as proper for their consideration. The award having been made conditional upon the legal admissibility of this evidence, the result must be

Award set aside and case recommitted