
    DUPEUX vs. TROXLER ET AL.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    The plaintiffs, as holders, sue the mater and endorser of a promissory note: intervenors claim the note and allege that it was the property of their ancestor, from whom it was stolen, and came unfairly and without consideration into the hands of the plaintiffs: Held, that when the testimony shows the note was not obtained in a fair eourse of trade, the holder is not considered bona fide and cannot recover as against the true owner. .
    This is an action by the holder against the maker and endorser,of a promissory note, for two thousand three hundred and ninety-six dollars seventy-five cents, payable in all the month of March, 1834, at the parish judge’s office, in the parish of St. Charles, and protested on the 3d of April, 1834, for non-payment. The plaintiff alleges the note was signed by E. Troxler, and payable to the order of F. Troxler, who endorsed it, and became the bond fide holder and owner thereof, in the usual course of trade, before its maturity, and for a good and sufficient consideration. He prays judgment for the amount thereof, with interest and costs.
    The defendants admitted the execution of the note sued on, and avowed their willingness to pay its amount to the true owner; but they averred that said .note belonged to the late Michel Friloux, by whom its loss by theft had been' advertised, and consequently the plaintiff is not the bond fide and legal holder thereof. They pray that the suit be dismissed.
    The heirs and legal representatives of Michel Friloux, deceased, intervened, alleging their ancestor was the true owner and legal proprietor of the note sued on ; and that it was stolen before it became due, from the -possession of Michel Friloux, in his life time, who advertised it and cautioned the public against receiving it; and that under these circumstances, it came into the possession. of the plaintiff, without any consideration being paid therefor. They pray to be allowed to intervene, and declared to be the true owners of said note, and that they have judgment for its amount. .
    The plaintiff denied the facts alleged by the intervenors,, and charged them with combining and conniving with the defendants to defraud him.. He avers, that even if the note was stolen, he received it in good faith, and for a valuable consideration, in the usual course of business, and was ; entitled to recover its amount.
    The defendants avowed their willingness and that they were ever ready to pay the true and legal owner, when ascertained by the court, &c.
    Upon these issues the parties went to trial. Several witnesses were produced by the plaintiff, and also by the intervenor : the testimony was contradictory.
    The district judge was of opinion, that although the loss of the note was not fully proved, yet there was enough shown to put the plaintiff on his proof of the manner he obtained possession of it. His testimony showed that through the agency of a person acting as a broker, in the city, he purchased the note in question from a stranger, who offered it for discount and sale, one morning while the broker was walking in the market. This was in the summer of 1833, and before the note became due. This testimony is flatly contradicted by another broker, who gives an entirely different account of the note, but which with the other testimony goes to show the note had been stolen. The plaintiff’s own declarations contradicted his witness.
    „ On weighing the testimony given on all sides, the district judge gave judgment for the intervenors. The plaintiff appealed.
    
      Roselius, for the plaintiff.
    1. The presumption of law is, that the holder of a negotiable obligation is the bond, fide owner thereof, until the contrary is shown. The testimony, in this case, establishes in the most conclusive manner, that the note in question was transferred to the plaintiff for a valuable consideration.
    2. No equitable defence is admissible against an innocent holder of a negotiable note, who has obtained it in the common course of business, before its maturity.
    3. The loss or theft of the note is not proved, nor have the defendants and intervenors complied with the formalities of law required under such circumstances.
    4. The court below erred, as is shown by the bills of exception on record.
    
      Morphy, for the intervenors and appellees,
    contended, that when the consideration of a note payable to bearer, and the rights of the holder are attacked, he is bound to show he came by it bond fide. In this case, the testimony shows conclusively the note was never negotiated by the original owner and holder, nor by any other lawful holder, to the plaintiff. 6 Martin, JV*. S., 565.
    
    2. An endorsed note, although negotiable by delivery, yet when it is passed off and the right of the holder is contested, on the ground that he gave no consideration for it, or that no legal transfer took place, more strict proof is required of the transfer and consideration than in ordinary cases.
    3. The formalities required by law, in relation to the loss of a written instrument, apply only to cases where the lost instrument is made the foundation of a suit, to recover the amount of iti
   Mathews, J.,

delivered the opinion of the court.

This is a suit brought by the holder of a negotiable note against the maker and endorser. The making and endorsement are admitted by the answer of the defendants, but they deny that the plaintiff is a bond fide holder. The intervention of P. Friloux et al. was permitted, who claim to be the rightful owners of the note in question. Judgment was rendered in their favor, from which the plaintiff appealed.

The decision of the case depends principally on matters of fact. The intervening parties allege that the note was the property of their ancestor, from whom it was stolen, and came unfairly and without consideration into the possession of the plaintiff. They claim the amount, &c., as heirs of the original proprietor.

The pla;ntiffij as holders, sue tlic mskfir and endorser of ®ote nors claim the that’itthe a„°estor °f from whom it was stolen, and came unfairly and Son m°to”th¡ '‘i"'13 °f plaintiffs: Held, that when the thenote wasnot obtained in afair the holder is not fde, and cannot recover as gainst the true owner,

The evidence of the case, in relation to the loss and theft of this note, was considered by the court below as sufficient to put the original plaintiff on proof of the manner in which ^ t he acquired it. Perhaps the testimony does not establish all the facts required to be shown in a case where a recovery is sought on an instrument lost or destroyed, according to the rules prescribed for the establishment of lost papers; but such as could be had in the present case, and such as was received in the court of the first instance, leaves no doubt . _ _ i _ .. on our minds, of the loss by theft, as alleged in the petition of the intervenors.

Many witnesses have testified in relation to the manner in , „ which the plaintiff acquired possession of the note, and from a careful examination of their testimony, giving due weight to all, we are of opinion that he did not obtain it in a fair course of trade, and consequently that he is not the real owner or bonajiae holder thereof.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court he affirmed, with costs,  