Page:Federal Reporter, 1st Series, Volume 5.djvu/412

 400 FEDERAIi BEPOBTBB. �consequent knowledge of the want of consideration, at and before the time of the alleged transfer. A jury trial was had, which resulted in the jury returning a general verdict for the defendants. �The plaintiff moved to set aside the verdict for the rea- song — First, that the verdict was not sustained by the evi- dence ; and, second, because of errors oommitted by the court during the progress of the trial. �There is no sort of daubt whatever about the note having been given without consideration. The proof on that point was abundant, and it was not ever claimed by the plaintiff that any consideration ever passed from either of the Haz- zards to the defendants, before, at the time of, or since the making of the note, on which such a promise can be sup- ported. On the contrary, it was expressly admitted by the plaintiff before the court and jury, and during the trial, that there was an entire absence and want of consideration for the giving of the note. The note eued on, then, at least between the parties to the original transaction, was a mere nudum pactum, and, as between them, payment of the note could. not have been enforced in a court. �The plaintiff sought to obviate this difficulty by showing, or at least attempting to show, that it took the note in the usual course of its business, before the same became due, and without notice of the infirmity of the note. There was, how- ever, some testimony which might tend to show that the cashier of the plaintiff had knowledge of the fact that the note was given for a purpose other than the one to which it was applied. At ail events, the proof before the jury show- ing want of consideration for the giving of the note was abundant, and if the jury was justified in acting on such proof, then the verdict must stand un] ess it be contrary to law. The errors said to have been committed by the court consist, in the main, of two or three written instructions given to the. jury on behalf of the defendants, which instructions are claimed to be erroneous, and prejudioial to the rights of the plaintiff. It bas not been made apparent that the instructions com- plained of are at ail erroneous, nor is it thought that theii ����