
    
      BROWN vs. FORT & GIRAUD.
    
    Fall 1809,
    First District.
    The consideration of a note enquired into.
    Action upon a note of hand. The ship Clara, owned by Foster & Giraud of New-York, being libelled in the district court of the United States, in New-Orleans, under the act of Congress, prohibiting the importation of slaves, 8 Laws U. S. 262, the defendants were desired by the owners to act for them, and, consequently, the ship being afterwards condemned and sold, they bought her in, and gave their note for the price to the plaintiff, the collector for the port of New-Orleans, with an endorser—This paper was payable on a future day and deposited with the clerk of the District Court. The forfeiture being remitted by law, the defendants refused payment.
    Alexander, for the defendants,
    praying leave to prove these facts, was opposed by
    
      Grymes for the plaintiff
    The defendants cannot be allowed to introduce proof, oral or written, to show the want of a consideration paid by the plaintiff, Kidd 34, 35, an indorsed note is like a bill of exchange, the acceptor of which is liable, although he knows that no consideration was given, Ibid. 83, 85. Ex nudo pacto, non oritur actio; but any degree of reciprocity takes a case out of this rúle: the execution of the note is that degree/of reciprocity. No proof is admissible of what passed between’ other persons than the parties to the suit. The defendants gave the note, they are not parties to the remission, and it cannot avail them. Fort & Giraud alone can claim the benefit of it. Pillans & Rose vs. Van Mierop & Hopkins, 3 Burr. 1663.
    
      Brown, for the defendants.
    An inquiry into the consideration of a note, when the plaintiff is an endorsee, is denied only when he came fairly by it and without notice. Kidd, 34. It is allowed when the endorsement is, posterior to the day of payment. 3 Term R. 82, 83. 4 Dallas 371. An assignee of a negociable paper takes it subject to all the equity to which the assignor is subject, whenever he has notice actual or constructive.
   By the Court,

Lewis, J. alone.

The evidence is proper. The note was endorsed merely for the purpose of securing the payment of it. The plaintiff may be considered as the original payee, for he received the note from the makers.

The defendants having introduced witnesses, and the facts being proved, the plaintiff voluntarily suffered a NoN Suit.  