delivered the opinion of the court.
This is a suit brought by the holder of a negotiable note against the maker and endorser. The making and endorsement are admitted by the answer of the defendants, but they deny that the plaintiff is a bond fide holder. The intervention of P. Friloux et al. was permitted, who claim to be the rightful owners of the note in question. Judgment was rendered in their favor, from which the plaintiff appealed.
The decision of the case depends principally on matters of fact. The intervening parties allege that the note was the *95property of their ancestor, from whom it was stolen, and came unfairly and without consideration into the possession of the plaintiff. They claim the amount, &c., as heirs of the original proprietor.
The pla;ntiffij as holders, sue tlic mskfir and endorser of ®ote nors claim the that’itthe a„°estor °f from whom it was stolen, and came unfairly and Son m°to”th¡ '‘i"'13 °f plaintiffs: Held, that when the thenote wasnot obtained in afair the holder is not fde, and cannot recover as gainst the true owner,The evidence of the case, in relation to the loss and theft of this note, was considered by the court below as sufficient to put the original plaintiff on proof of the manner in which ^ t he acquired it. Perhaps the testimony does not establish all the facts required to be shown in a case where a recovery is sought on an instrument lost or destroyed, according to the rules prescribed for the establishment of lost papers; but such as could be had in the present case, and such as was received in the court of the first instance, leaves no doubt . _ _ i _ .. on our minds, of the loss by theft, as alleged in the petition of the intervenors.
Many witnesses have testified in relation to the manner in , „ which the plaintiff acquired possession of the note, and from a careful examination of their testimony, giving due weight to all, we are of opinion that he did not obtain it in a fair course of trade, and consequently that he is not the real owner or bonajiae holder thereof.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court he affirmed, with costs,