
    JBIXL8 OF EXl'HAXliU.
    James C. Scott vs. Lewis Cooper and Asa C. Harden.
    
      Certiorari.
    
    Failure of consideration, in a negotiable note, is no defence to an action, in .favo* of a bona fide holder, without notice, unless he took the note after it became due.
   This Certiorari is brought, for the purpose of correcting certain errors, alleged to have been committed, in two cases, in a Justice’s Court, predicated on two promissory notes, of twenty-five dollars each, payable to James Simmons, made by the said Cooper & Harden, and sued on by the said Scott, as bearer; on the trial of which cases, the Jury found verdicts for the defendants. Several grounds of error are alleged. One is, that the defendants relied upon the plea of failure of consideration, and that the Court permitted them to go into proof, to support said plea, without making any proof, that the notes were over due, when they were transferred to plaintiff, or that plaintiff had any knowledge of such failure of consideration, when he traded for said notes. The return fully admits the facts, that this objection was raised, to the introduction of said evidence, and that said objection was overruled by the Court, and tile testimony admitted. The rule of law is, that a defence, of this sort, cannot be set up, against a note in the hands of a third person, to whom it has been transferred, without proof that it was over due, when it passed out of the hands of the payee, unless it is shewn, that the plaintiff had notice of such failure of consideration, at the time he received said note.

I am, therefore, of opinion, that the Court erred, in admitting any evidence of failure of consideration, and deem it unnecessary to go into an examination of the other grounds.

It is, therefore, ordered, that the Certiorari, be sustained, and new trials, in said cases, be ordered.  