This action was brought tc recover the amount of a promissory note which the plaintiff claimed to hold as a bona fide holder, which the testimony shows was transferred to the plaintiff for services as an attar ney in the defence of William E. Warner, who was at the time of the transfer charged with, and subsequently indicted' for, a criminal offence. The services were performed mainly, if not entirely, after the transfer of the note, which was máde on the 20th of January, 1870.
Upon the trial of the action, after the plaintiff had rested, the defendant offered to prove the facts set forth in the fourth division of his answer, which avers that Elizabeth S. Newton was the owner and holder of United States bonds of great value; that the same were stolen from her and sold; that a portion of the avails of said bonds so sold came to the possession of- the payee of said note, William E. Warner, and that the note was given for a portion of said money loaned by the payee in said note to the defendant; that the payee fraudulently concealed the fact from the defendant that the moneys so loaned were the avails of said stolen bonds, and fraudulently induced the defendant to believe that the money belonged to the payee; and relying upon this, he was induced to give the note in question; that after the making of the note in suit, the defendant was notified by Elizabeth S. Newton of the facts aforesaid, and forbidden to pay the same to the said Warner; and.that the said Elizabeth S. Newton, also, before the commencement of this action, commenced an action in the Supreme Court against the plaintiff in this action and others; and in that action obtained an injunction, forbidding the plaintiff in this action from collecting, selling or transferring the note sued on in this action, and notified the *127defendant of the ownership of the note, and of the proceedings in the action.
As the case stood at the close of the plaintiff’s testimony, the evidence showed prima, facie that he was a bona fide holder of the note in question, and as such entitled to recover. I think the proof that the money for which the note was given was stolen, would cast upon the plaintiff the burden of establishing that he actually was a bona fide holder, independently of the presumption arising from the fact that he had the note in his possession.
In The First National Bank of Cortland v. Green (43 N. Y., 298), it was held that a party suing upon a negotiable note purchased before maturity, is presumed, in the first instance, to be a bona fide holder. But where the maker has shown that this note was obtained from him under duress, or that he was defrauded of it, the plaintiff will then be required to show under what circumstances and for what value he became the holder.
The reason for this rule is said to be that, “ where there is fraud the presumption is that he who is guilty will part with the note for the purpose of enabling some third party to recover upon it; and such presumption operates against the holder, and it devolves upon him to show that he gave value for it.”
Now, applying this principle to the case at bar, it would appear, upon the proof of fraud being given, that the plaintiff held a note which had been given for the avails of stolen property, without any evidence as to the manner in which it came into his hands, or that he paid value for it; and under such circumstances I think he would be called upon to show how he came into the possession of the note. It seems to me it would be,' at least, a reasonable ground for a presumption that he had paid no value, inasmuch as it was given for property feloniously obtained, which we have held in Maston v. Porter * at this term, could be pursued and taken wherever it ’ *128might he found, and the avails appropriated by the actual-owner.
It follows that the court erred in excluding the evidence offered.
Other questions are raised by the defendant’s counsel, but they were not, I think, sufficiently presented to the court upon the trial, and, therefore, are not available. But this is not important, as for the errors stated, the judgment must be reversed and a new trial granted, with costs to abide the event.
Judgment reversed.
Reported,5 Lansing, 416.