#### Alvenus Cone *et al. versus*Stephen Baldwin.

In an action by the holder against the maker of a negotiable note, founded on a consideration which failed, the defendant is not obliged to prove that the plaintiff purchased with full and certain knowledge of the want or failure of consideration; if the circumstances attending the transfer were such as to put him upon his guard and he made no inquiry into the consideration, he purchased at his peril.

Where a promissory note payable to the payee or bearer, in nine months, was within three or four days from the date, and for a full and adequate consideration, transferred by the payee to the plaintiffs by delivery merely, the payee saying that the plaintiffs must take it at their own risk and that he would not be respon sible for it, it was *held*that these circumstances would not justify the jury in finding that the plaintiffs knew that the note had been obtained by the payee without a valid consideration or by fraud.

Assumpsit on a promissory note, dated August 29, 1829, and payable to Alonzo Case or bearer, on or before June 1, 1830.

On the trial, before *Morton*J., upon the general issue, it was proved that the note, within three or four days from its date, was assigned to the plaintiffs by Case, to whom they paid, in goods at retail prices, the amount then due thereon. The consideration of the note was the assignment by Case to the defendant, of a certain patent right, which, as appeared at the trial, Case did not own and had no authority to assign. The plaintiffs knew, when they purchased the note, that the consideration was the assignment of the patent right, and they were informed by Case that they must take the note at their own risk, and that he would not be responsible for it ; and the plaintiffs did accordingly receive it without any indorsement or guarantee by the payee.

Upon this evidence the defendant contended, that the note was without consideration and fraudulent, and that the plaintiffs could not recover. But the jury were instructed, that unless the plaintiffs had *some*knowledge of the defect of Case’s title to the patent right, the failure of the conveyance would not defeat the note in their hands.

The jury having returned a verdict for the plaintiffs, the defendant objected to the above instruction.

*Sept. 20th.*

*Mash*and *Hall,*in support of the exceptions,

said that in order to defeat the note in the hands of the plaintiffs, it was *553not necessary that they should have had actual knowledge of the defect in the consideration ; it was sufficient if they received the note under such circumstances as ought to have put them upon inquiry into the consideration ; that the question whether it had been so received, should have been left to the jury, with the instruction that the burden of proof was upon the plaintiffs. *Munroe*v. *Cooper,*6 Pick. 412 ; *Ayer*v. *Hutchins,*4 Mass. R. 370 ; *Thurston*v. *M'Kown,*6 Mass; R. 428 ; *Knapp*v. *Lee,*3 Pick. 452.

*Briggs*and *Sumner,*for the plaintiffs,

cited 2 Stark. Evid. 279 ; Bayley on Bills, (Phil. & Sewall’s edit.) 349 ; 1Dane’s Abr. 393 ; *Baker*v. *Arnold,*3 Gaines’s R. 279 ; *Russell*v. *Ball,*2 Johns. R. 50.

*Sept.*23d.

Wilde J.

delivered the opinion of the Court. We think it very clear that the instructions to the jury were correct, and that the evidence reported fully sustains the verdict. The plaintiffs appear in the light of *bona fide*purchasers of the note in question. They paid a full and adequate consideration on its assignment to them, and there is no evidence whatever to prove their knowledge of any want of consideration in the original contract ; nor is there any circumstance in the case from which such knowledge can be inferred. It has been said, and said truly, that the defendant was not bound to prove that the plaintiffs purchased the note with full and certain knowledge of the want or failure of consideration ; but that if the circumstances attending the transfer were such as to put the plaintiffs upon their guard, they were bound to make inquiry ; and that if they did not, they purchased at their peril. There is nothing in the charge controverting this principle, and we find nothing in the report of the evidence which can raise the question. The plaintiffs had a right to presume that the defendant had investigated the vendor’s title to the patent right, for the purchase of which the note was given ; and there were no circumstances accompanying the transfer of the note to the plaintiffs, which were calculated to awaken suspicion of any defect of title. The purchase of the note at their own risk, would not of itself be sufficient to justify the jury in finding that the plaintiffs were acquainted with the fact that the note was given without any valid consideration, or that it had been *554obtained by fraud. Bayley on Bills, 349 ; *Russell*v. *Ball, 2*Johns. R. 50. The evidence therefore is altogether insufficient to sustain a verdict in favor of the defendant, and no valid exception could have been taken, if the jury had been so instructed.1

*Judgment according to the verdict.*

1

 See *Goddard*v. Lyman, 14 Pick. 268; *Hall*v. Hale, 8 Connect. R. 336 *Perkins*v. Challis, 1 N. H. R. 254, *Wheeler*v. *Guild,*20 Pick. 545.