¶1The only question in this case was whether the defendants were the holders of the note for value.
¶2They obtained it before maturity from persons who had *367the lawful custody of it, and without notice that the delivery to them was a diversion from the t purpose for which it was given to such persons by the plaintiff; so that, if the defendants gave value for it, their title cannot be disturbed.
¶3The only evidence touching the question was that of one of the defendants. He testified that the defendants received it from Grant & Ascough, who were at the time indebted to the defendants in a much larger amount, and took it in lieu of money. Being aske'd, “ did they give it to you in payment of, the moneys due from them, or as security therefor ? ” he answered, “ as security, I should say.” Afterward, when asked to explain his answer, that it was given as security, he said, “ they gave it to us instead of so much money, and we accepted it as such.”
¶4There was, perhaps, sufficient conflict in this evidence to have made it proper for the jury to determine whether the note was taken in part payment of an antecedent debt, or merely as security for its payment; and had a request to submit such question to the jury been refused, it would, I think, have been error.
¶5Ho such request, however, was made; and the objection cannot be taken now that the case should have gone to the jury, upon that or upon any other question of fact there might be in the case (O’Neill agt. James, 43 N. Y. R., 84,93).
¶6The decision is, therefore, to be made as if the fact was undisputed that the defendants took the note toward payment of the debt of Grant & Ascough. Such a consideration made the defendants bona fide holders.
¶7But even if the decision below was made upon the weight of the evidence being in favor of such holding, it would meet with our approval. It is quite clear that the defendants did take the note as payment, and not as a mere security.
¶8The exceptions should be overruled and judgment ordered dismissing the complaint, with costs.
¶9Justices Curtis and Sedgwick concur.