Rogers and others vs. Morton and others, assignees of H. B. Gwathmey, 12 Wend. 484

By the Court, Nelson, J. I am of opinion that the facts disclosed by the bill of exceptions were sufficient to throw the burden upon the plaintiffs, of showing that Gwathmey was a bona fide holder for value. A promissory note imports a valuable consideration upon its face, and possession is presumptive evidence of property rightfully acquired ; but when the maker shows that it was obtained - from him and put into circulation by force or fraud, all the above intendments of law are rebutted, and proof becomes necessary. The cases are full on this point. Chitty on Bills. 32, 68, 400, 1. 13 East, 134, n. 1 Wheat.

Selw. 265. 2 Carr. & Payne, 606. 6 Wendell, 615. 5 Pick. 412. 2 Campb. 596. 22 Com. Law. R. 78. 10 Johns. R. 232. 3 Johns. Cas. 260, 263. Now it is clear, from the evidence, that a fraud was committed upon the makers at the time the note was given; and to the extent of the fraud, it would constitute a good defence against Grimshaw. The note was given to him in the name of Gwathmey, whether in trust for himself or for value does not appear ; if for the latter, it seems to me it should have been shown.

Grimshaw used the name of Gwathmey as an original party to the note, and, for aught appearing, without his privity or assent; and if there was nothing else in the case, it would obviously stand upon the same footing as if the note had been taken payable to himself.

The only facts that can be relied on to vary the case are, that the suit is brought in the names of the assignees of Gwathmey, and the note is in their possession •, but this inference of property, I think, is fairly rebutted by the rest of the case. .Unless Grimshaw .procured the endorsment of Gwathmey, he could not collect the note himself in any other way than in his name or in that of his assignees. The fact, therefore, of the suit being in the names of the assignees, is not incompatible with the continuance of the title and property of the note in Grimshaw.

I may add, that as Gwathmey is an original party to the note, the onus lay on him to show the case an exception to the general rule» that the consideration may be inquired into between the original parties. Upon these grounds, I think, the defence offered should have been admitted to prevail, and that the judgment must therefore be reversed. J udgment reversed.