
    Nathaniel G. Nye, use of John Kirk vs. William Grubbs.
    In an action, on a promissory note, against one of several joint makers, the statements of another of the makers, are clearly inadmissible as evidence for the defendant, when objected to by plaintiff.
    K. sued G. on a promissory note, made jointly by G. and others. On the trial, after ,K. had read the note to the jury, G. introduced a witness, who testified that in December, 1840, and also in January, 1841, he saw a note, in the possession of P., who was one of the makers thereof; he did not read . it, but from the amount of it, which he saw, and the signatures to it, he supposed it to be the note sued on ; that P. then informed witness he had bought the note; the plaintiff then proved that both in September and November, 1840, P. called on witness, and had conversations about the note sued on; P. inquired of witness, who was the holder of it, and said he wished to make some arrangement to take it up, and was informed that it was held and owned by K.; that in January, 1841, and again in March, 1841, P. conversed with witness about the note, and said, in the last conversation, that he had not succeeded in making the arrangement-to take it up; that in a few days after this last conversation K. left the note in the hands of witness, to have suit brought on it. The jury found a verdict for G. ; K. moved for a new trial, and his motion was overruled : Held, that the verdict was without evidence, and the new' trial should have been granted.
    EekoR from the circuit, court of Yazoo county ; Hon. Morgan L. Fitch, judge.
    This was an action of assumpsit, instituted in the circuit court of Yazoo county, to the May term, 1841, by Nathaniel G. Nye, for the use of John Kirk, against Henry Peden and William Grubbs. The declaration was founded on a joint and several promissory note, for $7602 35, made by William Burk, Henry Peden and William Grubbs, in favor of N. G. Nye, dated the 10th day of December, 1839, and payable twelve months after date. The defendants pleaded non assumpsit. At the May term, 1842, the death of Henry Peden was suggested, and the case abated as to him. The cause was then tried, and a verdict and judgment rendered in favor of the defendant. The plaintiff moved for a new trial, and his motion being overruled, he filed a bill of exceptions, setting out all the evidence, and which discloses the following facts : That the plaintiff, on the trial, read the note sued on, and rested his case. William W. Wood was then called, as a witness, by the defendant, and testified, that about the last day of December, 1840, and also about the latter part of January, 1841, he saw a note, in the hands of Henry Peden, which he believed to be the note sued on; he did not read it, but he saw the amount of it, and the signatures to it, and he supposed it to be the same note sued on. Witness was then asked by the defendant what statement Peden made in relation to the note in his hands. Plaintiff objected to the statements of Peden being received as evidence, but the court overruled the objection, and permitted the evidence to go to the jury. Witness then stated, that while the note was in the hands of Peden, he spolce of it as the Kirk note, and told witness he had bought it. This being all the evidence offered by the defendant, the plaintiff called Nathaniel G. Nye, who, after stating that he had no interest in the note sued on, testified, that the note sued on was in his possession from about the 20th day of December, 1839,'until early in February, 1840, when it passed out of his hands. That about the last of August, or first of September, 1840, Henry Peden called on witness, and informed him that Burk, the principal in the note, was dead; and he then inquired of witness who was the owner of the note, and learning from witness that it was held and owned by Mr. John Kirk, of Columbia, Tennessee, he requested witness to write to Kirk, that if he would come down in November, or some time before the note fell due, he, Peden, would take up the note, by giving one hundred bales of cotton, and good security for the balance. Witness wrote to Kirk, as requested, and in the latter part of November, 1840, Kirk came to Yazoo county. A few days after Kirk left Yazoo, Peden called on witness, and inquired whether Kirk had left the note with him, and when told he had not, Peden asked where Kirk could be found, and requested witness to write to him to send the note to him, witness, so that he, Peden, could get it. Peden stated, that his object in wanting the note, was, to aid him in his application before the probate court, for letters of administration on the estate of William Burk. Witness could not say, whether he wrote to Kirk, as requested, or not, but he thought he did not. Some time in January, 1841, and previous to the fourth Monday, Peden again called on witness, and requested him to make an affidavit, that he knew Peden had made an arrangement with Kirk, by which Peden was to get the note sued on, which affidavit Peden stated he wished to use before the probate court; witness declined giving the affidavit. About the first of March, 1841, Kirk again visited Yazoo county; and while he was in Yazoo city, where witness resides, Peden came to town, and called on witness, and witness asked him whether he had made the arrangement he wished with Kirk for the note; he replied that he had not; but he hoped they would come to an arrangement before Kirk left, and inquired where Kirk could be found in town. Kirk left the county in a day or two after that time; and when he was about leaving, he placed the note in the hands of witness, to have suit brought on it. Which was all the evidence offered on either side.
    The plaintiff brought the case, to this court, by writ of error; and now assigns the following causes of error, to wit:
    1st. That the court below erred in allowing the statements of Henry Peden to go to the jury.
    2d. Because the court overruled the motion for a new trial; the verdict being contrary to law and the evidence in the case.
    $. E. Nye, for plaintiff in error.
    So far as a negative can be proved, it is established in this case by the clearest testimony of which a negative fact is susceptible, that this note never was in Peden’s possession. Up to September, 1840, its custody is positively proved. It is also proved, that in January, sometime previous to the fourth Monday, which was subsequent to the first, and about simultaneous with the last time that Wood saw it. Peden was in constant search of it, for the purpose of using it before tbe probate court; and when he could not procure it, he endeavored to procure an affidavit, that a negotiation was on foot, by which he was to become the holder of the note. Independent of this, plaintiff in error proved, most conclusively, by the same species of testimony, introduced by defendant, to wit: The declarations of Peden, that up to March, 1841, long after the last time it was seen in his possession, that the note never had been paid, and from that time to the commencement of the suit, its custody is established. It is insisted that Grubbs is as much bound by this declaration or acknowledgment of Peden, as if made by himself, they being joint makers of the note, which is a point upon which all the authorities agree, without a dissenting opinion. Whitcomb v. Whiting, 2 Doug. 662; Perham v. Raynal et al. 2 Bing. 306, found in 9 Eng. C. L. R. 413; Burleigh v. Stott, 8 Barn. & Ores. 41; Sigourney v. Drury, 14 Pick. 387; 3 Cow. 312; 1 Phil, on Ev. 93; Perry v. Jackson, 4 Term R. 516 ; Jackson v. Fairbank, 2 H. B. 340 ; Gilb. Ev. 51. After citing the above list of authorities, we forbear all commentary; it is sufficient to remark that each one is in point. This view is established by this court, in the case of Dillingham v. Jenkins, opinion B., 234, as to sureties.
    If the weight of testimony was in favor of plaintiff in error, the new trial should have been granted ; but there is a decided preponderance. Lake v. Brown, 7 How. 661.
    Not the least astonishing feature in this case, is the astounding fact, that though defendant proved that some note was seen in Peden’s hands, not a particle of testimony is introduced to prove that it was paid or extinguished in any manner whatever. Suppose it was seen in his hands, when the proof is that it had not been paid; what are the consequences 1 A bill or note is negotiable, ad infinitum, until paid, and does not become func-tus officio until then. Chit, on Bills, 8th Am. ed. 249; 3 Maul. & S. 97, 98 ; 4 Bing. 390 ; 1 M. & P. 11; 3 Carr. & P. 134; Emerson v. Cutts, 12 Mass. 78; Boylston v. Greene, 8 Mass. 465.
    The facts, all taken together, render it very clear, that the verdict below, was contrary to law and the evidence, and, consequently, a new trial should have been granted.
    
      W. R. Miles, for defendant in error.
    In answer to the first assignment of error, it is only necessary to say that Wood’s testimony was every way competent and proper. Henry Peden was one of the joint makers of the note sued on ; and if, by payment, purchase, or other valid contract, he obtained possession of it, its negotiability was destroyed, and it could not again be put into circulation. 2 How. 727.
    
    Whilst in possession of the note, Peden was, at least, the prima facie owner of it; and his declarations were, therefore, competent testimony. That Peden did have the note sued on, in his possession, is abundantly evident, from the fact that' he spoke of it as the “Kirk note,” from the identity of amount, and the sameness of the signatures.
    There is nothing in the second assignment of error. At least, there was but a seeming conflict of testimony between Wood and Nye, and the jury were the legitimate judges of this mere matter of fact. But, in truth, there is no real conflict of testimony. Wood swears that Peden had the note, in December, 1840, and in January, 1841. Nye swears, that Kirk had the note at another and different 'time. Besides, Nye shows, that Peden, as early as August, 1840, was trying to effect the purchase of this identical note; and the fair presumption of its subsequent possession, by Peden, is, that he did purchase it. However Grubbs may be liable for contribution to Peden’s estate, he cannot be made liable to Kirk.
   Mr. Justice Clayton

delivered the opinion of the court.

• The statements of Peden, one of the makers of the note sued on, introduced in favor of another party to it, in opposition to the objections of the plaintiff, were-clearly inadmissible.

The verdict is also against the evidence; indeed, it has no evidence to support it. All that Wood swore to may be true, and yet the verdict be without evidence, because he could not identify this as the note which he saw in the possession of Peden.

But if the testimony of Nye be true, it is manifest that the note referred to by Wood is not the one in suit. Both may have told the truth, and we are not authorized to presume the contrary, and if so, the verdict cannot stand. It is directly against the testimony of Nye, and if the note referred to by Wood is not the one in suit, it is without any foundation. There was no evidence in opposition to that of Nye, nor any to impeach his credibility.

On both grounds the judgment must be reversed, and new trial granted.  