Emerson v. Burns , 114 Mass. 348 ( 1874 )

Colt, J.

The court ruled in substance that the possession of the note in suit afforded a presumption that the plaintiff took it before maturity for a good consideration, and directed a verdict for the plaintiff. But where original illegality of consideration is shown, the presumption which applies where there is only failure or want of consideration is not sufficient to support the plaintiff’s case. It is well settled that upon proof that a promissory note is founded in illegality or was obtained or put in circulation fraudulently, an indorsee, before he can recover in a suit upon it, must show that he gave value for it; it is not first incumbent on the defendant to show the contrary. And this because of the temptation which the original holder of such a note must always have to pass it into other hands for the mere purpose of collection, and without the payment of a consideration therefor. Sistermans v. Field, 9 Gray, 331. Holden v. Cosgrove, 12 Gray, 216. National Bank of North America v. Kirby, 108 Mass. 497.

Exceptions sustained.