
    
      RUSSEL & AL. vs. HALL.
    
    Eastern District.
    
      February, 1830.
    Appeal from the court of the fourth district, the judge of the second presiding.
    Want of consideration may be proved between the maker and payee of a note.
   Porter J.

delivered the opinion of the court. The defendant was sued as maker of two promissory notes in favor of the plaintiffs. He pleaded that the payees were but trustees for another, for whose use and benefit they received the notes; and that there had been a failure of the consideration for which they were given.

The defendant, at the term to which the citation was returnable, moved for a continuance for want of the testimony of a witness residing out of the jurisdiction of the court, by whom he expected to prove that the notes were given to the plaintiffs as the agents of Joseph Erwin. The court was of opinion, that the evidence, if obtained, was not admissible; and refused to continue the cause, There was judgment against the defendant, and he appealed.

We think the court erred. It is a well established rule of commercial law which has been more than once recognised by this tribunal, that between the maker and payee of a promissory note, want of consideration may be pleaded. If it make a part of the proof necessary to establish this defence, that the payees have no real interest in the notes sued on, evidence may as well be given of this fact, as it may that no value was received, when the instrument expresses that value was received. The one is not more contradictory of the writing than the other. The rule would soon cease to be one, if nothing else was necessary to defeat its operation, than the insertion of the names of payees different from those having an interest in the contract.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that the case be remanded with directions to the judge a quo not to prevent the defendant proving that the plaintiffs were agents of Joseph Erwine, and that the notes were given for his use and benefit. It is further ordered that the appellees pay the costs of the appeal.  