Motion for a new trial on a bill of exceptions in an action of assumpsit.

The suit was brought to recover the amount of three promissory notes made by Bowie on the 1st of January, 1857, for $1,000 each, payable to the order of one Frank Steers, from whom the plaintiff purchased the notes before maturity.

The defense was, that the notes were given for a gaming consideration, and that they were, therefore, void in the hands of even a bona fide holder for value. To make good the defense, the counsel for Bowie were able only to introduce circumstantial evidence, which was in effect that Steers, the payee of the notes was a common gambler, and at the time the notes were given was the keeper of a gambling house on Pennsylvania avenue, and that he had no other business and was possessed of no property. They also showed.that the body of each of the notes was in the handwriting of John E. James, another common gambler, and a habitue of Steer’s establishment, and that there was another note made by Bowie of a like amount and date, made payable to the order of John Campbell, another gambbler and employee of Steers, to deal faro. They also proved that on the day of the date of the notes that Bowie was grossly intoxicated and entirely unfit for any business whatever, and that when under the influence of liquor he had a propensity which he could not control to visit gambling establishments and play at their games.

The exception was to the ruling of the Court, in admitting this evidence.

1. It was error in the Court below to admit evidence showing that when intoxicated, it was defendant’s 'propensity to gamble. If A had money stolen, could he recover from Bon proving B’s propensity'to steal? Could A defeat B’s recovery at law by proving that B had - a propensity to make usurious contracts. Jackson vs. Smith, 7 Cowen, 717.

It was error to allow the defendant to read in evidence a note executed in favor of one Campbell and indorsed by him to one Johnson on proving that the said Campbell frequented the gaming house and assisted the said Steer in gambling. Beauchamp vs. Parry, 1 Barn & B., 89; 6 Dowl. & By., 379, 1 B. & M., 212 ; United States vs. Dunn, 6 Pet., 57; Shaw vs. Bronne, 4 D. & B., 731; 3 Phil. Ev., 289 ; Bristol vs. Dan., 12 Wend., 142.

If there were no error in admitting this testimony, yet there was error in refusing to instruct the jury that this evidence, taken with the other facts, did not constitute sufficient evidence to prove a gaming consideration.

The plaintiff stood in Court as a bona fide purchaser of a negotiable security, with every presumption in his favor, and a violation of law cannot be presumed. 3 Kent, 80, note a; Swift vs. Tyson, 16 Pet., 1.

Endorsement presumed to be on day of date, and for valuable consideration, and onus on defendant to overturn this presumption. 6 Md., 338; Pinkerton vs. Bailey, 8 Wend., 602; Webster vs. Lee, 5 Mass., 335; 3 Day, 311.

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