The opinion
Cockrill, C. J. The appellant’s defence of fraud and a failure of consideration to the note sued on, could have been made without a transfer of the cause to the equity docket. The transfer was made at his instance, however, and he does not, and could not be heard to, complain.
The burden of showing that Lane, the plaintiff, combined with Cummings, the patentee, to decoy the defendant into the purchase of a worthless invention, was upon the latter. The Chancellor found that no collusion was proved, nor fraud on the part of the plaintiff shown. The preponderance of the evidence is with the Chancellor’s finding, and we decline therefore to disturb it. Gaty v. Holcomb, 44 Ark.
Conceding that the proof establishes a failure of the original consideration of the note, the defence was incomplete without the proof of the fraud sought to be established; because when the plaintiff is absolved from the charge of fraud in procuring the execution of the note, it leaves him in the attitude of a bona fide purchaser of the note for value, before maturity, and under the belief that the maker had executed it upon a valuable consideration. The testimony leaves no ground for a middle course. The failure of the consideration then would not affect the plaintiff's right to recover. Although it appears from the face of the note that the plaintiff 'was the immediate promisee of the defendant, he was not precluded thereby from showing the true state of the case. Lane, the plaintiff, held a note indorsed by Cummings, for $750. In order to take up this note, Cummings procured the defendant to execute his note for $1000 direct to Lane, and received from Lane the difference in value between the two notes. The transaction is the same in substance (as far as it concerns the defendant) as if the note had been drawn in favor of Cummings and by him indorsed to Lane. 1 Parsons Notes & Bills, p. 181, 2d ed.; 1 Daniels Neg. Inst., secs. 175-6; Munroe v. Bordier, 8 M. G. & S., 862, S. C. 65, E. C. L. 861; Poirier v. Morris, 2 E. & L. 89, S. C. 75, E. C. L. 88; South Boston Iron Co. v. Brown., 63 Me., 139.
Let the judgment be affirmed.