John Smith vs. Joseph Hiscock et al., 14 Me. 449

After a continuance, the opinion of the Court was drawn up by Weston C. J. If the note, upon which this action was brought, being negotiable, had been indorsed bona fide before it was due, the want of consideration is not an available defence, against a subsequent holder, to whom it may have been passed, after it was due. Bayley on Bills, 349, and the cases there cited. The promise is good to the first indorsee, free from that objection, and the power of transferring it to others, with the same immunity, is incident to the legal right, which he had acquired in the instrument.

By the first negotiation, the want of consideration, between the original parties, ceases as a valid ground of defence. From the evidence in the case it appears, that the note was indorsed, bona fide, by Buss, the payee, to Bachelder, more than three months before it became due. He thereupon became the fair holder for value. And his title was not the less valid because he held it as collateral security, upon a demand, short of its nominal value. Bosanquet et als. v. Dudman, 1 Starkie’s R. 1.

In that case the plaintiffs, who were bankers, held the bill then in suit, with others, as collateral security for acceptances for the party, of whom they received it, beyond his cash balance. The suit was against the acceptor, who had accepted it for the accommodation of the original parties. Lord Ellenborough would not permit the amount of the excess to be inquired into, ruling, that whenever the acceptances exceeded the cash balance, the plaintiffs held all the collateral bills for value. And the principle decided in that case, is incorporated by Bayley in his text. Bayley, 350.

The note in this case, passed from Bachelder to the plaintiff, through the hands of Russ, but Bachelder never parted with his interest in it, until he received from the plaintiff, through Buss, in pursuance of a previous understanding, the sum of five or six hundred dollars, for the security of which he held the note. The plaintiff then, received the note from Bachelder, through Buss, and is as much entitled, as Bachelder would have been, to repel the defence now set up.

If the latter, sometime after the indorsement to him, became the agent of Buss, in regard to the excess, beyond what was wanted for his own security, Buss was his agent in passing the note to the plaintiff, and receiving from him the value, for which Bachelder held it. To the extent of his interest in the note, the latter, in his negotiations with the plaintiff, was acting for himself and not for Buss; although Buss had an interest in having the note turned to the best advantage.

Pending this suit, the plaintiff was told, by the counsel for the defendant, that the note was given for a yoid patent, and therefore without consideration, and that this defence would be set up against the note, as it was negotiated to him, after it became due. This the plaintiff did not deny, but said he supposed he should fail in the action, if the patent proved bad. He did not contradict the counsel, upon a point of law, believing, no doubt, at the time, that such would be the legal result. His own counsel has since advised him, that his case is not quite so desperate.

He was not informed at the time, and did not .then kn.ow, that he would be protected, if the note had been negptiated, bona fide, for value, before it was due to Bachelder, of whom he purchased it; and he ought not to be prejudiced by a supposition, intimated under a misapprehension of the law. In our opinion, the evidence of a want of consideration, upon the case as it is presented, did not afford legal matter of defence against the plaintiff, and ought to have been rejected. The exceptions are accordingly sustained, the verdict set aside, and a new trial granted.