note for the house and lots. It was stated to me at the time I bought the note, that the note was secured by property in Duluth, Minnesota, worth $17,000; and that it was a six per cent note for five years. *** It took three or four days to make the trade. Those indorsements were on the note at the time I received it, exactly as they are now. I am sure of that. There is no chance that I can be mistaken on this point."

In the light of this testimony we are unable to see what relation the business of Neff, Prentice and Cheney, or Prentice and Cheney had to the transaction. We cannot understand why the defendant should have put himself forth in the record as a gambler in grain options, or should have admitted that he had dealt in those commodities and met extraordinary losses. He does not testify in support of the defense, but says that it was an accommodation paper executed by him, secured by a mortgage upon property in Duluth, Minnesota, which he loaned to the firm for the purpose of saving their credit, with the promise that they would not use it or in any way utilize it save and except to show it.

Under the testimony, it is evident that the defense could not be legitimately relied upon to defeat recovery. He cannot be heard to insist upon the validity of the defense, that the note grew out of a gambling transaction, because he has established by his own testimony and by that of his witness, Smissaert, that it is not true. The fact that the plaintiff purchaser for value without

testified that he is a bona fide information of any defense of any kind or character to the note, that he bought it before maturity, paying its full face value is undisputed. He declares himself to be the owner of the note and swears that the indorsements were on the note at the time he received it.

We are not called upon to decide whether or not dealing in the rise and fall in the prices of grain through the instrumentality of bucket-shops is contrary to good policy or in violation of the express provisions of our statute. The testimony of defendant relieves us entirely from this bur

den and labor, and we are equally confident that authorities in support of the conclusion of this court are unnecessary. Plaintiff swears that he was a bona fide purchaser; that he purchased for value before maturity without notice of any defense or defects. The note contained no indorsements, marks or signs wherewith the plaintiff could be charged. The defendant swears that he delivered it as accommodation paper under a promise that it should not be used or transferred, but, nevertheless, having permitted it to pass out of his hands into the commercial world, he stands charged with the obligation to pay.

It is said that the court erred in charging the jury to return its verdict in favor of plaintiff for the sum of $450; and, that the court erred in refusing to instruct the jury as requested by defendant. We are not prepared to admit this because we think the testimony introduced on behalf of the plaintiff and defendant clearly warranted the court in directing a verdict for plaintiff for the sum claimed.

The instruction asked and refused is in words and figures as follows:

"The court instructs the jury that the note in controversy, on which it is alleged by the plaintiff that one and a half years interest is due, and for which interest this suit is brought is made payable to George M. Cheney, and that the plaintiff claims title to said note by indorsement from said Cheney to one H. L. Prentice, and by said Prentice to plaintiff, and that to entitle the plaintiff to recover in this action, the plaintiff must prove the genuineness of the indorsement of said note by said Cheney to said Prentice, and also the genuineness of the indorsement of said note by said Prentice to plaintiff; that, if the plaintiff has failed to prove the genuineness of either of said indorsements, the jury will find for the defendant."

Defendant was not entitled to this instruction. Plaintiff proved that he received the note before maturity without notice of any defense and with the indorsements upon the note, and he thereby made prima facie proof, thus casting VOL. I-33

upon the defendant the burden of disproving the genuineness of the indorsements if he could.

In Wyman v. Colorado National Bank, 5 Colo. 30-33, it is said: "The possession of the paper by the defendant as such indorsee imported, prima facie, that it was acquired in good faith for full value, in the usual course of business before maturity, and without notice of any circumstances impeaching its validity, and that such holder was the owner thereof, and entitled to recover the full amount against all prior parties; and although the burden of proof might be shifted during the course of the trial, yet when such possession is once shown, the burden of proof is then upon the one seeking to impeach any of the elements of validity or rights of the · holder which such possession implies."

In Poorman v. Mills & Co., 35 Cal. 119, it is held that, "Where a promissory note is indorsed in blank the title and right of action pass by delivery, and the note is payable to the bearer."

"The presumption is that the indorsee of a promissory note, is a holder for value, and the burden of proof is on the party denying that it is so held."

In Wayland University v. Boorman, 56 Wis. 657, it is held that, "In an action upon a promissory note, by an indorsee, the production of the note duly indorsed to the plaintiff is prima facie proof of the assignment thereof to him before due and for a valuable consideration." Hays v. Hathorn et al., 74 N. Y. 487.

In Daniels on Negotiable Instruments, § 633, this doctrine is announced: "A bill or note payable to bearer, or indorsed in blank, may be transferred like currency by mere delivery."

Section 812-"The mere possession of negotiable instruments, produced in evidence by the indorser, or by the assignee where no indorsement is necessary, imports prima facie that he acquired it bona fide for full value, in the usual course of business, before maturity, and without notice of any circumstances impeaching its validity; and that he is the own

er thereof, entitled to recover the full amount against all prior parties. In other words, the production of the instrument and proof that it is genuine (where indeed such proof is necessary), prima facie establishes his case; and he may there rest it."

Section 1200:-"Possession is in itself prima facie evidence of the right of the party to sue and receive the money when he holds under a legal title, and also that the title, although not expressly, is actually vested in him. And therefore in order to defeat his suit, it must be shown that he is a mala fide holder."

It is insisted by appellant that the court erred in rejecting proof offered. The offer was as follows:

"We propose to show the character of the business carried on in this place as alleged in our third defense, in detail and in particular. We will then say, that growing out of the evidence will be such circumstances, together with the evidence that is already in the case in connection with the evidence of Mr. Pendleton, that it will be sufficient to go to the jury on the matter of notice to Mr. Smissaert as to the consideration of this note at the time he received it."

We think the action of the court in declining to admit evidence thus offered was correct. The offer itself was too indefinite, but if it were not the court could not have considered it because the character of the place run by Cheney and Pendleton would not in the face of his own testimony contribute to support his contention. The appellant admits that he gave the note, he gave it to be used, true not to be transferred, but to be used by the payee in obtaining credit in the First National Bank. The evidence tends to show he knew it had been used. This is established by the letter of the Union National Bank. If it is true that it was without consideration, as is claimed, still we do not see how that would contribute to defeat the right of recovery by Smissaert, who took the note in question which imported a consideration, and paid for it a valuable consideration by way of exchange before its maturity.

1 516 13 515 14 5011

We are clearly of the opinion that the appellant, defendant below, by his admission, warranted the result reached by the court and jury, and we see no error in the record which authorizes us in disturbing the verdict. The judgment must be affirmed.

Affirmed.

EPH. LOVE, APPELLANT, v. GEO. W. TOMLINSON, AP

PELLEE.

1. DEPOSITIONS-OBJECTIONS TO INTERROGATORIES.-Where depositions of witnesses were regularly taken for the plaintiff in an action pending, on interrogatories and cross-interrogatories filed by counsel of the respective parties, no objections being interposed for defendant until the trial of the cause, when objections were made to the character of some of plaintiff's interrogatories, such objections were properly overruled, as they came too late, even if otherwise valid.

2. SALES WITH INTENT to DefrauD CREDITORS — EXAMINATION OF WITNESSES.-In an issue of fact as to whether a transfer of property was made to hinder, delay or defraud creditors, it is proper to inquire of the party selling, and of his agent through whom the sale was made, whether or not the transfer was made with intent to hinder, delay or defraud creditors.

Appeal from District Court of Larimer County.

Mr. E. A. BALLARD, for appellant.

Mr. J. M. DAVIDSON, for appellee.

RICHMOND, P. J. This was an action to recover the possession of fifty-one head of horses and forty-five head of cattle, of the alleged value of $3,675, and damages in the sum of $35, for the unlawful detention. Suit was instituted by the appellee, Geo. W. Tomlinson, who filed his com