dissenting:
The learned judge below, who had much better opportunity to judge of the credibility of the witnesses who testified before him than we have, found as a fact, upon sufficient evidence in my judgment, that no consideration was given for the note in question. This fact alone would not constitute a defense, as the note was under seal. But I am very strongly inclined to the opinion that this fact, taken in connection with the other facts and circumstances, namely, the extreme age of the maker, his enfeebled condition of mind and body, the relationship of father and son between him and the payee, the confidence growing out of such relation, the withholding, if not the intentional concealment, from his coexecutor by the payee for two years and more of the fact that he held such obligation, brought the case within the general principle enunciated in the cases cited by the appellee’s counsel, and cast on the holder the burden of proving that the transaction was fair and conseionable. Upon a full view of all the evidence, without reciting it here, and of the judge’s findings of fact based thereon, I am constrained to the conclusion that the decree should be affirmed.
Porter, J., concurs in foregoing dissent.