¶1Opinion op the Court by
¶2The acceptance of the whisky without objection and long possession and use of it without an offer to return it or rescind the contract, waived any defense against the note for the consideration except that of illegality and all cause of action on account of a breach of warranty by a deficit in quantity or quality.
¶3But if, as alleged, the vendor of the whisky and obligee of the note had drugged it in violation of the penal statute against all such chemical adulteration; the consideration was illegal and the noté therefore voidable in the hands of the obligee and also in the hands of an assignee without the privity of the obligor and for a new consideration on which the assignee took it.
¶4In this case the testimony tends to prove that the appellants gave up a debt on Johnson in consideration of' a new note and the assignment of it to them. If this be so the appellees are estopped, as against the appellants, from impeaching the legality of the original consideration.
¶5Consequently, the court erred in the instruction to find for the appellees if the whisky was drugged and known to be so adulterated by the obligee when he sold it. The instruction ought to have been qualified by the hypothetical estoppel.
¶6Wherefore, the judgment for the appellees is reversed and the cause remanded for a new trial.