Perkins v. Prout , 47 N.H. 387 ( 1867 )

Bellows, J.

It must be considered as settled in this State, that if a promissory note was obtained by fraud or duress, or upon an illegal consideration, and it is held in the name of an endorsee, the burden is upon him to prove that he is -a bona fide holder, and for value. Clark v. Pease, 41 N. H. 414; Garland v. Lane, 46 N. H. 245.

Such were the instractions substantially in the case before us. As the evidence tended to prove that the note was obtained by fraud, it was proper and necessary to tell the jury upon whom the burden of proof rested in respect to the good faith of the transfer, leaving it to them to determine the question of fraud on the evidence. In respect to that evidence the court gave no opinion, and there is no exception to any instructions as to its competency to be considered.

The reason for casting the burden of proof upon the endorsee in such cases is to be found in the presumption, based upon experience in such cases, that a person who has illegally or fraudulently obtained a promissory note will generally cause it to be sued in the name of an endorsee, with a view to shut out, or embarrass the defence that might otherwise be made. For this reason such transfers are usually regarded with suspicion ; and hence the rule which throws the burden of proof upon the endorsee, who must very generally have the best means to show what the facts really are.

The proof of other fraudulent representations of the payee about the same time, and of a similar character, was admitted to show his fraudulent intent in this case, not to render it probable that he made such representations to defendant; and such evidence is admissible for that purpose. This is settled by the case of Bradley v. Obear, 10 N. H. 477, where the principle involved was the same as in the case at bar.

Upon the same ground, proof of other conveyances made about the same time as the conveyance in question, and with intent to defraud creditors, is admissible. Whitton v. Varney, 10 N. H. 294, and cases cited.

Indeed, when the knowledge and intent of a party is a material fact, proof of matters apparently collateral is admissible in many cases both civil and criminal. 1 Greenl. Ev. sec. 53, and notes and numerous cases cited; 4 Stark. Ev. 377; Roscoe’s Cr. Ev. 94. Among the cases of this sort are indictments for altering counterfeit money, and then altering other and similar counterfeit money about the same time, or having it in the prisoner’s possession, may be received upon the question of guilty knowledge.

So in actions for slander, proof of other language used about the same time, is admissible to show malice. 2 Starkie on Slander 54-57.

In Roscoe’s Cr. Ev. 94, before cited, it is laid down without qualification, that wherever the intent of the prisoner forms part of the matter in issue, evidence may be given of other facts not in issue, provided they tend to establish the intent of the prisoner in committing the act in question, and the authorities cited by him fully sustain the doctrine.

The instructions as to the necessity of restoration were correct, and the exception appears not to be insisted upon.

Judgment on the verdict.