This action is by the original payee against the maker of a promissory note payable on demand, and the burden of proof was upon the plaintiff throughout the trial. The defendant offered to prove that the note was given for a consideration moving to the defendant from Thompson, at whose request the note was made payable to the plaintiff; and that this consideration was a sale with warranty of a water-wheel which proved utterly worthless. If such were the facts, the defendant was entitled to treat the sale as a nullity; and the proof of entire failure of consideration would have rebutted the presumption of consideration arising from the admission of the making of the note, and would have established a complete defence as between the original parties to the note.
One consideration of the note having been proved, there could be no presumption, in the absence of evidence, that there was any other; and the defendant was not therefore obliged to prove that there was no other consideration for the note. If there was any other consideration, it was for the plaintiff to show it. As the ease stood, the plaintiff might have held the note in trust, or as an agent, for Thompson. The presiding judge, by rul ing that the facts offered to be proved by the defendant would *47constitute no defence, left nothing upon which he could go to the jury. The verdict to which he submitted under this ruling must therefore be set aside. Upon a new trial, it will be open to the plaintiff to show, if he can, that the consideration which failed was not the only consideration for the note; but that there was another valuable consideration for it, moving from the plaintiff to Thompson.
If the plaintiff could be considered, as was suggested at the argument, in the light of an indorsee of a note made to Thompson, it would not aid him; because this note, being payable on demand, would be open to all the defences existing between the original parties when the indorsee took it. Gen. Sts. c. 53, § 10.
Exceptions sustained.