(dissenting):
I dissent. The case is treated by the majority of the court as if it were an action by one having title to the coupons to recover for their non-payment. They were negotiable instruments (having been cut off from the bonds) and were in the actual possession of the defendant when this action was brought, and had been so for a long time before. They had been surrendered to and canceled by it. The defendant must have obtained them directly from Kelly or from some transferee of his. It is not claimed or suggested that it obtained them wrongfully or fraudulently. One Shafer sued Kelly for the conversion of these coupons and recovered a judgment, which Kelly paid. The latter had parted with the coupons, but to whom, or for what consideration (if any) or under what circumstances does not appear. Whatever right Kelly has is derived from his payment of the judgment obtained against him by Shafer. I do not concur in the view that, by that fact alone, he acquired a cause of action against the defendant to recover the amount of the coupons he himself had surrendered or parted with, and which had found their way back to the party originally issuing them. It was for Kelly, or those claiming in his right, to show the circumstances under which he parted with the coupons, and which would entitle him equitably to recover in this action.- He does allege such circumstances in the complaint, but his allegations are denied and he totally failed to prove them. If it had been proven, as alleged, that Kelly received the bonds from the defendant, cut off the coupons and delivered them back to the defendant, I should not differ with the majority of the court, but there is not one word of proof that he did so. All that appears in the record on these matters is an *510■averment in his answer in the Shafer action that certain named persons, representing the defendant, deposited the bonds and coupons with him. That is a bare allegation in another action unsupported by any evidence whatever. The single fact that the defendant did not pay these coupons in money is not enough. It may have been entitled to them as against Kelly or those to whom he transferred them, otherwise than through their retirement by actual payment. The notice given the defendant by Kelly to come in and defend the Shafer suit is unavailing, unless some obligation, legal or equitable, is shown to have rested on it to defend Kelly’s acts in dealing with the coupons, and none was shown. The burden of proof is with the person who attacks the right of one in possession of negotiable paper. The defendants must have taken these coupons upon or after Kelly’s parting with them. The plaintiffs should have shown that the defendant was not entitled to them or did not give any consideration for them to any one.
Judgment reversed, new trial ordered, costs to appellant to abide event.