#### DeWitt vs. Perkins.

Pkomissory Note: Bona fide *holder for value?*Evidence: Attorney— *Privileged Communication.*

1. Plaintiff, knowing defendant and that lie was in fair credit and afile to respond, purchased, shortly before its maturity, his note for three hundred dollars and interest for six months, paying therefor only five dollars. As between the original parties the note was invalid for want of consideration. *Held,*that the plaintiff was not a *bona fide*holder for value, so as to protect him.

2. Plaintiff’s attorney, as a witness, was questioned by defendant as to who owned the note when he (said attorney) sold it to the plaintiff. *Held,*that the witness was bound to answer the question, as it did not call for facts communicated to him by the plaintiff; and this, although the payee had formerly been his client, since the latter does not appear as a party in interest in this action.

8. The question whether said witness had ever advanced any money to any person on the note, did not call for an answer which could have been the subject of a privileged communication.

APPEAL from tbe County Court of *Milwaukee*County.

Action on defendant’s promissory note. Tbe jury, by direction of tbe court, found for tbe plaintiff; and tbe defendant appealed from tbe judgment. Tbe questions in dispute will sufficiently appear from tbe opinion.

*JB. Manner*and *David S.*Ordway, for appellant,

to tbe point tbat tbe plaintiff’s attorney should have been required to answer the questions put to him, cited *Ooveney v. Tanna-hill,*1 Hill, 40, and tbe case there cited of *Duffin v. Smith,*Peake, 108; *Dudley v. Beck,*3 Wis., 285-6; *Hattan v. Robinson,*14 Pick., 416. To tbe point tbat plaintiff was not a purchaser in good faith, *DeNeve v. LeNeoe,*2 L. C. in Eq. (Am. ed.), Ill; Edwards on Bills (2d ed.), § 320; *Whit-bread v. Jordan,*1 Younge & Cole (Exeh.), 303; *Anderson v‘. Nicholas,*28 -N. Y., 600; *Jones v. Smith,*23 Eng. Ch., 70; *Goodman v. Simonds,*20 How. (U. S.), 366-7; *Williamson v.*Brown. 15 N. Y.. 364.

*474
      *Geo. W. Lakin,*for respondent,,

contended tbat tbe evidence called for by tbe questions put to plaintiff’s attorney, was immaterial; and to tbe point tbat tbey called for privileged communications, be cited 1 Q-reenl. Ev., §§ 237-40; *jBeltzhoover v. Blackstoek,*3 Watts, 21; *Foster v.*Hall, 12 Pick., 89; *Parker v.*Carter, 4 Munf., 273; *Chirac v. Peinicker,*11 Wheat., 280; *Bean v. Quirnby,*5 N. E, 94.

DixoN, C. J.

The plaintiff, knowing tbe defendant, and tbat be was in fair credit and able to resjmnd, purchased, shortly before its maturity, a promissory note against him for three hundred dollars and interest for six months, paying therefor only tbe sum of *Jive dollars.*As between tbe defendant and tbe payee, tbe note was invalid for want of consideration. Is tbe plaintiff a *bona fide holder for vaule,*so as to protect him against tbe defense of a want of consideration? We answer, no. Tbe consideration paid by him was merely nominal. It is as if tbe note bad been given to him, and be should claim tbe protection afforded a *bona fide*bolder for value. It appears on tbe face of tbe transaction tbat it was not a negotiation of tbe note in tbe usual course of business, but tbat tbe sum exacted on tbe one side and paid on tbe other was to give tbat tbe semblance of a sale, which otherwise was intended as a mere gift, or, what is worse, a shift to get tbe note out of tbe bands of tbe payee so as to cut off the- defense of tbe maker, for tbe payee’s benefit. Either view is equally fatal to tbe action of the plaintiff, provided tbe defense of a want of consideration is established.

Again, tbe buying of a note against a solvent maker, tbe purchaser knowing him to be such, for a mere nominal consideration, is very strong, if not conclusive, evidence of *mala fides.*It is constructive notice of the invalidity of tbe note in tbe bands of tbe seller — such as to put tbe purcha*475ser upon inquiry, which, if' he fails to make, he acts at his peril. *Brown v. Taber,*5 Wend., 566; *Mathews v. Poythress,*4 Ga., 287, 299 et seq., and cases cited; *Anderson v. Nicholas,*28 N. Y., 600; *Whitbread v. Jordan,*1 Younge & Collyer (Exch.), 308, 328; *Jones v. Smith,*1 Hare, 68 ; 1 Parsons on Notes and Bills, 254, 259-60. The proof offered to show a failure of consideration should-have been received, and the case submitted to the jury on this ground.

The court likewise erred in not requiring the witness Lakin * to answer the questions put to him. The question as to who owned the note when he, Lakin, sold it to the plaintiff, did not, by possibility, call for any information communicated to the witness by the plaintiff’. It related to a fact which the witness must have known before the note was sold or the plaintiff became interested. The claim of privilege interposed to this, question seems to proceed upon the idea .that Mr. Cady, the payee of the note and former client of the witness, is the real party in interest in this suit, which may be very true, but still he does not appear before the court in that attitude. He appears as one having sold the note without liability over,'and therefore having no interest in the question. He cannot for this purpose be regarded as the party in interest.

The other question put to the same witness, and answer declined on the same ground, was as to a matter which in its very nature never could have been the subject of a privileged or professional communication to the witness. It was, whether hq, the witness, had ever advanced any money on the note to. any person. If the advancing of money by an attorney upon a note is a privileged communication, then it,is difficult to conceive what single act of an attorney may not be.

*476
      *By the Court*— Judgment reversed, and a new trial awarded.

Mr. Lakin was the plaintiff’s attorney in this action. — Rep.