Page:Federal Reporter, 1st Series, Volume 5.djvu/411

 OMAHA NAT. BANK V. WÀLKEB. 399 �. Omaha Nat. Bank ». Walkeb and another. �{Oiraiit Court, D. Nferaska. January 3, 1881.) �1. Pbomissoet Note — Collection Guakantied— StriT bt Assignee. "Where a promissory note is transferred, anà the collection of it ig guarantied by the payee in the foUowing form, to-wit, " This note is transferred, and the collection of the same guarantied to the holder herepf," the makera can make any defence to a suit commenced by an assignee that could have been tnade to a suit if commenced by the payee, notwithstanding the assignee may take the note before due, and without knowledge of any inflrmity in the note. �Motion for New Trial. �E. Wakely, ior plaintiff, �O. M. Lamhertson, for defendant. �; DuNDT, D. J. This suit is based upon a promissory note made by the defendants to bne John W. Hazzard, who trans- ferred it to the plaintiff for value before due. The note bears date January 1, 1879, and in terms binds the defendants to paysaidiohnW. Hazzard, or brder, $1,600, two months after the date thereof, with interest at the rate of 12 per cent, per annum after due. The defendants also agree to pay a rea- sônable attorney's fee, pot exceeding 10 per cent., in case it should be necessary to commence suit to enforce the payment of the note. On the note is found the transfer of the same in the foUowing form, to-wit ; ^ �"This note is transferred, and the collection of, the same guarantied to iha holder hereof by �"John W. Hazzard, "Geo. Hazzard." �The note was duly protested for non-payment, whereupon suit was commenced against the makers in this court. The defendants answered in due time, and admitted the execution and delivery of the note, but denied — First, that John W. Hazzard, the payee, had ever transferred the note to the plaintiff ; second, that the defendants had ever received any consideration whatever for the making and delivery of the note; and, third, that the plaintiff had actual notice of the object and intention of the parties to the transaction, and ����