
    
      BOWEN vs. VIEL.
    
    Appeal from the court of the fourth district.
    “obea^erand the holder are mhstSew he came by it bomjide.
    
   Porter. J.

delivered the opinion of court. This action is brought on a note alie-ged to have been executed by the testator of the defendant in his life time, in favor of one Jacob Petit, or bearer) for fifteen hundred dollars, and payable twelve months after date.

The answer denies the execution of the note; avers that tho plaintiff holds it fraudulently, and in bad faith, and gave no value for the same; that if the signature to the note should be that of Goyer, it was obta ined fraudulently, knavishly, and without consideration.

The c9.se originated in the court of probates, where judgment was given for the plaintiff— From that tribunal an appeal was taken to the district court, where the issue joined, was tried “ ' by a jury, who found for the defendant. The plaintiff was unsuccessful in an attempt to obtain a new trial, and appealed.

The evidence, in our opinion, does very fully support the verdict of the jury, and shews the signature of the deceased to have been obtained by the grossest fraud. There is no proof, indeed, the plaintiff participated in the transaction, though the evidence shews that he is now willing to profit by it, without any other interest in the transaction but that which arises lucrum captando. The note was payable to bearer, and, as both the consideration on which it was given, and the right and title of the petitioner, were put at issue by the answer, it was his duty to prove he came by it bona jide, and for a good consideration. This case presents one of the exceptions to the general rule, enumerated in the case of Bank vs. Eastin, vol. 2, 292; See also, 1 Camp. 100; 3 Burrows, 1516, 1517; 2 Show. 235; Taunton 114; Chitty on bills, 1821, 89.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court he affirmed with costs.

Eustis for the plaintiff, Christy for the de-fondant.  