PEARSON, J.,
delivered the opinion of the Court.
Assumpsit on two promissory notes made by William E. Johnson, the defendant, payable to one James Anderson or bearer. The consideration appears upon the face [392]*392of the notes-, to wit-: “For value received for a certain boy Isaac.” The notes are dated December, 1856, and payable as follows:
First note, $200, payable 1st of February, 1855.
Second note, $325, payable 1st January, 1856.
There are six pleas in the cause upon which issue was taken, the substance of which are,
First, That said promissory notes were not the property Of said plaintiff'.
Secondly, That the consideration for which said notes were given had wholly failed.
At the trial in the Circuit Court, holden in and for tbe county of Duval, the following appeared to be the facts of the case:
One James Anderson, a transient person, sold to W. ID ■Johnson a negro boy Isaac, for $1,000* Part was paid down and the notes, the foundation of this action, were given for the balance of the purchase money; that on or about the time the first note became dhe the said Prescott made repeated visits to the store of the said Johnson, and frequently conversed wdth the witness, a clerk of said Johnson, about said notes and the probability of their being paid at maturity, at the same time stating that he was not the owner of the notes, hut could get them at a “great shavealso> when asked where Aüderson was, equivocating and refusing to give his “ whereabouts.” It also appeared, that said Prescott was told by said clerk of Johnson that said notes would not be paid if tbe consideration failed. It also appeared front the testimony that said Prescott, at these conversations, related to the witness what the notes were given for and acknowledged he knew all about the sale of said negro boy Isaac to said Johnson, as also the terms of the sale. All these facts, it appeared, were known to said Prescott at a time [393]*393when he said he did not own the notes, but that Anderson had them.
The original notes were not produced at the trial, but, in lieu thereof, copies established after the commencement of this suit, under the statute of Florida, were read in evidence.
The plaintiff offered no testimony excepting the established copy of the notes. It did not appear that the original notes were ever seen in the hands of said Prescott.
The counsel for the plaintiff asked the Court to charge the jury:
1. That the establishment of lost notes by law, as contained of record, is prima faeie evidence of ownership in the person in whose behalf they are established as fully as the actual possession of the original notes would be.
2. That the maker being notified of the institution of proceedings to establish lost notes and failing to appear and make defence, is stopped by the judgment of the Court from disputing the title of the person establishing the same.
3. When .a promissory note is transferred before it becomes due, in order to invalidate it in the hands of the transferree, the defendant must prove failure of consideration and notice of such failure to the transferree before the. transfer brought clearly home to him.
4. That the jury are the sole judges of the facts and the credit of the testimony. If they do not believe a witness, they will reject his testimony.
The Court refused the second instruction and gave the other's.
The counsel for defendant asked the Court to charge the jury, that,
I. If the plaintiff (Reason Prescott) has not the possession of the notes, nor either of them, by reason of any inter[394]*394est he h^s in them, and his name has only been used as plaintiff, this does not make him a holder or assignee. I't is not-as agent, but as holder or assignee* that the. plaintiff must show his right to maintain suit..
2. If you find from- the evidence that said promissory notes, or-either of them* were transferred after they became d^e, and that said hoy Isaac was, at the time of the sale* the. property of Ald;i;i,ge Braddock and has since been recovered by the said A^rige Braddock, that- therefore the. consideration has wholly failed and the plaintiff' is not entitled to. recover said notes, or such one as. you may find was transferred after it became due.
3. Consideration of a note transferred before due can be enquired into where circumstances ofstjs.picion appear. If you fip.cl that the said Reason Prescott, at the time of receiving said notes, or either of them, had knowledge said boy Isaac was claimed as the property of Aldrige Brack dock by said Braddock* and that said claim was after-wards perfected and therefore there was a want of com sideration* then the plain,tiff is not entitled to recover.
Which, instructions were given by tb.e Court* and the-jury found, a verdict for defendant.
Motion, was made, fur a new trial on tb.e following-grounds* to wit:
1. Because the verdict is against th.e evidence..
2-. Beca.use the verdict is against law.
3„. Because the verdict is against the manifest weight of evidence..
Which ¡¡a.otimn for new trial was denigd, and this cause-comes up. to be heard on writ of error to. th.e judgment-rendered in said Court...
The statute providing- for thé establishment of lost papers (see Thompson’s JMgest, 361,) declares that tlaU' Gogies of g.a/pers established as herein, greswibed shall be-[395]*395as valid and effectual for all legal purposes as the origindl could have been had the same not been lostP This provision of the statute seems clear, and under it, we think, the establishment of a copy in lieu of the original was no more than an admission that he (Johnson) gave such notes, and the establishment of .a lost paper can have no more force than the recovery of the original; and reading the copy in evidence, although established under the statute, could not operate as an estoppel to any defences which might have been set up against the original had the original been read in evidence. Therefore we do not think the Court erred in refusing the charge as prayed.
The nest question to be considered is the plea of failure of consideration, which appears by the record to have Ibeen sworn to and filed in the manner prescribed by the .■statute in such cases.
The 24th section of the act of November 23d, 1828, (see Digest, 331,) reads as follows : “ And it shall not be necessary for the plaintiff to prove the execution of any bond, note or other instrument of writing pu/rporting to have been signed by the defendant, nor the consideration for which the same was given, unless the same shall be denied by plea put in amd filed as aforesaidP
It will be observed the expression of the statute is, “ the „considerationP It does mot say want of consideration, or failure of consideration, but says “ the comiderationP
In the case of White vs. Camp, 1 Florida, p. 95, this Court said; “ Upon the oath being taken, in compliance with the requisitions of the statute, and by proper parties-, the onus
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PEARSON, J.,
delivered the opinion of the Court.
Assumpsit on two promissory notes made by William E. Johnson, the defendant, payable to one James Anderson or bearer. The consideration appears upon the face [392]*392of the notes-, to wit-: “For value received for a certain boy Isaac.” The notes are dated December, 1856, and payable as follows:
First note, $200, payable 1st of February, 1855.
Second note, $325, payable 1st January, 1856.
There are six pleas in the cause upon which issue was taken, the substance of which are,
First, That said promissory notes were not the property Of said plaintiff'.
Secondly, That the consideration for which said notes were given had wholly failed.
At the trial in the Circuit Court, holden in and for tbe county of Duval, the following appeared to be the facts of the case:
One James Anderson, a transient person, sold to W. ID ■Johnson a negro boy Isaac, for $1,000* Part was paid down and the notes, the foundation of this action, were given for the balance of the purchase money; that on or about the time the first note became dhe the said Prescott made repeated visits to the store of the said Johnson, and frequently conversed wdth the witness, a clerk of said Johnson, about said notes and the probability of their being paid at maturity, at the same time stating that he was not the owner of the notes, hut could get them at a “great shavealso> when asked where Aüderson was, equivocating and refusing to give his “ whereabouts.” It also appeared, that said Prescott was told by said clerk of Johnson that said notes would not be paid if tbe consideration failed. It also appeared front the testimony that said Prescott, at these conversations, related to the witness what the notes were given for and acknowledged he knew all about the sale of said negro boy Isaac to said Johnson, as also the terms of the sale. All these facts, it appeared, were known to said Prescott at a time [393]*393when he said he did not own the notes, but that Anderson had them.
The original notes were not produced at the trial, but, in lieu thereof, copies established after the commencement of this suit, under the statute of Florida, were read in evidence.
The plaintiff offered no testimony excepting the established copy of the notes. It did not appear that the original notes were ever seen in the hands of said Prescott.
The counsel for the plaintiff asked the Court to charge the jury:
1. That the establishment of lost notes by law, as contained of record, is prima faeie evidence of ownership in the person in whose behalf they are established as fully as the actual possession of the original notes would be.
2. That the maker being notified of the institution of proceedings to establish lost notes and failing to appear and make defence, is stopped by the judgment of the Court from disputing the title of the person establishing the same.
3. When .a promissory note is transferred before it becomes due, in order to invalidate it in the hands of the transferree, the defendant must prove failure of consideration and notice of such failure to the transferree before the. transfer brought clearly home to him.
4. That the jury are the sole judges of the facts and the credit of the testimony. If they do not believe a witness, they will reject his testimony.
The Court refused the second instruction and gave the other's.
The counsel for defendant asked the Court to charge the jury, that,
I. If the plaintiff (Reason Prescott) has not the possession of the notes, nor either of them, by reason of any inter[394]*394est he h^s in them, and his name has only been used as plaintiff, this does not make him a holder or assignee. I't is not-as agent, but as holder or assignee* that the. plaintiff must show his right to maintain suit..
2. If you find from- the evidence that said promissory notes, or-either of them* were transferred after they became d^e, and that said hoy Isaac was, at the time of the sale* the. property of Ald;i;i,ge Braddock and has since been recovered by the said A^rige Braddock, that- therefore the. consideration has wholly failed and the plaintiff' is not entitled to. recover said notes, or such one as. you may find was transferred after it became due.
3. Consideration of a note transferred before due can be enquired into where circumstances ofstjs.picion appear. If you fip.cl that the said Reason Prescott, at the time of receiving said notes, or either of them, had knowledge said boy Isaac was claimed as the property of Aldrige Brack dock by said Braddock* and that said claim was after-wards perfected and therefore there was a want of com sideration* then the plain,tiff is not entitled to recover.
Which, instructions were given by tb.e Court* and the-jury found, a verdict for defendant.
Motion, was made, fur a new trial on tb.e following-grounds* to wit:
1. Because the verdict is against th.e evidence..
2-. Beca.use the verdict is against law.
3„. Because the verdict is against the manifest weight of evidence..
Which ¡¡a.otimn for new trial was denigd, and this cause-comes up. to be heard on writ of error to. th.e judgment-rendered in said Court...
The statute providing- for thé establishment of lost papers (see Thompson’s JMgest, 361,) declares that tlaU' Gogies of g.a/pers established as herein, greswibed shall be-[395]*395as valid and effectual for all legal purposes as the origindl could have been had the same not been lostP This provision of the statute seems clear, and under it, we think, the establishment of a copy in lieu of the original was no more than an admission that he (Johnson) gave such notes, and the establishment of .a lost paper can have no more force than the recovery of the original; and reading the copy in evidence, although established under the statute, could not operate as an estoppel to any defences which might have been set up against the original had the original been read in evidence. Therefore we do not think the Court erred in refusing the charge as prayed.
The nest question to be considered is the plea of failure of consideration, which appears by the record to have Ibeen sworn to and filed in the manner prescribed by the .■statute in such cases.
The 24th section of the act of November 23d, 1828, (see Digest, 331,) reads as follows : “ And it shall not be necessary for the plaintiff to prove the execution of any bond, note or other instrument of writing pu/rporting to have been signed by the defendant, nor the consideration for which the same was given, unless the same shall be denied by plea put in amd filed as aforesaidP
It will be observed the expression of the statute is, “ the „considerationP It does mot say want of consideration, or failure of consideration, but says “ the comiderationP
In the case of White vs. Camp, 1 Florida, p. 95, this Court said; “ Upon the oath being taken, in compliance with the requisitions of the statute, and by proper parties-, the onus of proof is thrown upon the plaintiff, and he is bound to prove the consideration of the instrument upon which suit is brought.” — 1 Florida, 100.
From this it would seem that the onus of proving the consideration where plea of failure of consideration is [396]*396, put in on oath is upon the plaintiff in oases y/here tire consideration can be enquired into.
The case of Hagler vs. Mercer, reported in 6 Flo., 343, was a case entirely upon the- admissibility of a plea. The question was whether the affidavit was necessary to permit the plea of failure of consideration to be filed, the Court determining only that the plea was admissible and good at common law, but did not change the onus of proof except in cases where it is sworn to.
Suffice it to say, that, in deciding- this case, the Court entertains the same- view of the statute it did in the case of White vs. Camp. As .this is an action, not between th-e original parties to the notes, but between the holder as assignee and the drawer, we are called upon, in the next place, to ascertain whether- as between such parties the consideration can be enquired into at common law. The Court charged the jury, that ‘-‘consideration of a note can be enquired into where circumstances of suspicion appear.”
It is laid down in Story on Promissory Notes, page 237, §197: “ It will be sufficient if the circumstances are of such a strong and pointed character as necessarily to cast a shade upon the transaction and to put the holder upon enquiry”'
In Down vs. Hailing- et ah, 4 Bar#well & Cresswell, 332, the Court held: The jury were properly directed to find for the plaintiff if they thought the defendant had taken the check under circumstances which ought to have excited the suspicion of a prudent man.”
The case of Cone vs. Baldwin, 12 Pickering, 545, goes to say: “In an action by the holder against the maker of a negotiable note, founded on a consideration which failed, the defendant is not obliged to prove that the plaintiff purchased with fall and certain knowledge of the want [397]*397or failure of consideration If the circumstances attending the transfer were such as to put him upon his guard and he made Ho enquiry into the consideration-, he purchased at his peril.”
From these cases we find, that, at common law, where circumstances of suspicion appear, the holder of a negotiable instrument, taken before due, may be required to prove consideration.
The defendant in the Court below pleaded failure of consideration under oath^ and adduced proof that the plaintiff took the notes sued upon under suspicious circumstances-. The jury so found under the evidence, and this Court is not prepared to say their verdict was contrary to evidence, It follows-, then* that the onus of proof that the consideration had not failed was upon the plaintiff. On this point we do not find one particle of evidence.
We think the second instruction asked for by defendant’s counsel and given by the Court Vas erroneous and might have been calculated to mislead* if there was any evidence upon which they could, under this charge, have been misled. The words of the charge were, “ If youfind from the evidence,” the title and recovery of Braddock* &c. There being no legal evidence at all, the jury could not have been misled — -therefore the charge was innocent. It is manifest to us from the evidence, that whether this charge had been given or not, the verdict would have been the same. The case seems to us so developed that there could have been no recovery without proof of title in the vendor. "We think, therefore, a new trial would have been fruitless; and, where the Court are satisfied a new trial would not bring about a different result, it is not proper to grant one. But* without further discussing that point, we think the verdict was sustained by the evidence; and, while we consider that there was error in the last men[398]*398tioned charge, we do not consider it sufficient to set aside the verdict and grant a new trial.
In Edmonson vs. Mitchell, 2 Dunford & East, page 4, it is laid down, that “ where a new trial is moved for on the ground of a misdirection in point of law, if the Court see that justice had -been doné between the parties, they will not set aside the verdict nor enter into a discussion of the question at lawN And this principle has been settled by this Court in the case of McKay vs. Lane, 5 Flo., page 276, and substantially reaffirmed in Doggett vs. Willey, & Florida, 482.
Tbe defendant by his plea under oath having stated that the consideration of said' notes had wholly failed, the burthen of proof to the contrary was upon the plaintiff. He having failed to- make such proof, the judgment of the Court below is affirmed with costs.