delivered the opinion of the court.

This was an action of assumpsit upon several promissory notes, given for the purchase of stock in thp town of Upper Colbert. The notes were payable to Thomas S. Renean, and were by him assigned to Storke, the decedent, in his lifetime, who was the owner of the land upon which the town was to have been built. Renean had purchased, some of the stock) and. *28these notes, it seems, were executed to him for stock which h^ sold to the defendants, and were by him transferred to Stork©* The general issue was the only plea, but the want or failure o¡consideration and fraud was relied on in the defence. Severa1 bills of exception were filed during the progress of the trial; th/f jury found a verdict for the defendants ; a motion for a new trif1 was made and overruled, and an appeal taken to this court. (.

The first ground relied on for the reversal of the judgment, .was the introduction of testimony alleged to be irrelevant and improper. This consisted of several certificates for stock in the town, but there was no proof that the notes were given for those certificates, except the correspondent agreement in dates and amounts between the notes and the transferred certificates. Apart from this testimonj? the consideration of the notes was pot shown.

No valid objection is perceived to the admission of this evidence. The defendants were under the necessity of showing for what the notes were given ; this fact they had to establish, and it might be done as well by circumstantial as by direct proof. The exact correspondence of dates and amounts, between the notes and the transfer of the certificates, might properly aid the jury in coming £o a conclusion; and if left unexplained by the plaintiff, might justly form the basis of their verdict.

The next objection is, that the defendants were permitted to give evidence of fraud on the part of Storke in the sale of the stock to Renean, in order to prevent a recovery by the administrators of Storke, upon the note of the defendants. This objection is made upon the ground that a fraud practiced by Storke upon Renean forms no defence for the appellees in the action against them. Usually this is correct. A fraud upon one man can form no defence for another, unless there is some privity or relation between them in regard to the transaction. An assignee takes the place of the assignor, and if the latter has been guilty of fraud in the transaction,. the former is equally affected by it. Is not the converse of this proposition equally true ? If a vendor make fraudulent representations to the vendee in regard to the thing sold, it is clear the latter may set up the fraud as a de*29fence ; if he resell, and then transfer the note which he receives, upon the resale, to the original vendor in payment of his purchase, may not the same defence be made by the sub-vendee, when sued upon his note by the party guilty of the fraud? It would be hard to maintain the contrary. In this case, if the proof had shown that Renean transferred the note of the defendants to Storke, in payment or discharge of his debt to Storke, for the purchase of the same stock, such a connection would thereby have been established between Storke and the defendants as would have made the evidence clearly admissible. In the absence of such connection, the evidence objected to was not legal.

The remaining bill of exceptions was taken to the refusal of the court to grant a new trial. According to the testimony as therein contained, the note was given for stock in a town, of which the plaintiff was the original proprietor. He used various artifices to decoy purchasers ; he induced some to lend the use of their names to advance his schemes, with an assurance that they should never be called on to pay. Afterwards, the whole scheme miscarried and was abandoned, and Storke repeatedly declared that he would never attempt to enforce the collection of any of the debts contracted for the stock. It will be borne in mind, that the purchase was not of certain, designated lots, but of stock in the town, which became wholly worthless when the original projectors relinquished their design. The case of want or failure of consideration was therefore plainly made out. No charge was asked of the court, but the whole matter was left to the determination of the jury. The finding was, in our opinion, entirely in conformity with the evidence upon the point of want of consideration, and there is no reason for disturbing it, unless upon the ground of the admission of improper evidence.

The decisions are not uniform, as to the course proper to be taken by the appellate court, when improper testimony has been admitted, if there be also sufficient legal testimony to justify the verdict, without regard to that which is exceptionable. We think, however, the weight of reason and of authority is with the rule, that a new trial will not be granted under such *30circumstances, when the court is satisfied that justice has been done, and that there is little reason to believe a different result would ensue upon a second trial. In a doubtful case, the rule would be different. Crary v. Sprague, 12 Wen. 41. 8 Wen. 671. 3 Johns. 532. Graham on New Trials, 246, 401.

We are satisfied that there is abundant testimony to support the verdict, independent of that referred to in the second bill'of exceptions relative to the alleged fraud, and we are not therefore disposed to disturb it.

Judgment affirmed.