
    [Pittsburg,
    October 1, 1824.]
    ZEIGLER against GRAY.
    IN ERROR.
    Possession of an order by the person on whom it is drawn, though the order be payable to a particular person, and not endorsed by the payee, is prima facie, evidence that it, has been paid.
    In an action by the endorsee against the maker of a promissory note, the endorser is a competent witness to prove, that the defendant had notice of the endorsement, before he acquired a claim upon the endorser, which he had given in evidence as a set-off.
    The plaintiff in error brought an action in the Court of Common Pleas of Allegheny county, as endorsee of a promissory note for two hundred dollars, dated March SOth, 1816, drawn by the defendant, James Gray, in favour of T. O’Conner, by whom it was endorsed to the plaintiff. As a set-off against this note, the defendant offered in evidence an order in his possession, drawn on him by the said T. O’Conner, not payable to bearer, but to particular person, which was objected to by the counsel for the plaintiff, on the ground that it was not endorsed, nor was a receipt produced to show that it had been paid. The court, however, admitted the evidence upon the principle, that an order in the possession of the person upon whom it is drawn, is prima facie evidence of its having been paid; and the plaintiff’s counsel excepted to their opinion. The defendant having also given in evidence, as matters of set-off, certain notes of T. O’Conner, which had been assigned to him, and also certain judgments and receipts, the plaintiff proposed to examine O’ Conner, the payee and endorser of the note on which suit was brought, to prove, that the defendant had notice of endorsement of the note previous to his obtaining an assignment of the notes offered as a set-off. An objection being made to his competency as a witness, for the purpose for which he was called, he was rejected by the court, who sealed another bill of exceptions.
    
      MiI)onald,‘ for the plaintiff in error,
    on the first point, cited, 3 Esp. Ca. 196. Chilly on Bills, 101, 113, 534. 3 Camp. 439.
    With respect to the second exception, he observed, that there was nothing in evidence to show that O’Conner was interested, and therefore he was a competent witness to prove the fact for which he was produced. The case does not fall within the rule, that a man shall not defeat paper which he has himself put in circulation. The effect of his testimony would have been to establish, instead of to defeat the instrument. An endorser is constantly received as a witness to prove facts subsequent to the endorsement. Warren v- Merrey, 3 Mass. 21. 37. Brown v. Babcocle, Id. 39. Jordainev. Lashbrooke, 7 T. II. 601. Coleman v. Wise, 2 Johns. 169. Woodhull v. Holmes, 10 Johns. 231. SMlding v. Warren, 
      15 Johns. 270. Baker v. Arnold, 1 Caines, 258. Baird v. Cochran, 4 Serg. & Ratole, 397.'
    
      Forward, for the defendant in error,
    argued, that possession of an order is certainly prima facie evidence that it has been paid.
    On the second point, he acknowledged that the inclination of his mind was against the opinion of the court below.
   The opinion of the court was delivered by

GibsoN, J.

No argument can be drawn, either from reason or convenience, why possession of an order by the person on whom it was drawn, should not, prima facie be evidence of his having paid it to some one; and this, whether it was payable to fearer, or only to a particular person. • The presumption that the payee would not part with his security without having received satisfaction, is a reasonable one; and although these orders are sometimes left with the persons to whom they are directed by careless persons, without payment having been made, yet that sometimes occurs with receipts whieh accompany tradesmen’s bills, and no one would pretend that a receipt attached to a bill would therefore not be competent. There is no necessity that the order should be endorsed by the payee, or that it be made payable to bearer: it is not as evidence of the transfer of the debt, but of extinguishment of it, that possession of the paper becomes material. On the ground of authority, the cases cited are inapplicable. Most of them belong to a class that relates to bills of exchange, whieh, in the ordinary course of business, necessarily go into the hands of the acceptor before they are presented for payment; and in respect to these, therefore, possession is not evidence of payment without proof that the particular bill had been in circulation after acceptance. The case of Gorgeral v. M'Carty, (2 Dall. 144,) is that of an endorser who had got possession of a bill after he had endorsed it away, and this was held to- be no evidence that he had paid the person for it, to whom he had before parted with it for a valuable consideration. This was not a case of extinguishment, but of transfer; and the decision was in effect nothing more, than that possession of the property of another is not evidence, that the party in possession has purchased and paid for it. The case of Egg v. Barnett, 3 Esp. Ca. 196, was the case of a banker’s check, which is in effect payable to bearer, the payee often being a nominal person, and consequently as the money might just as well have been received by any one else, possession of the check was held not to be evidence of payment to any one in particular. But the question before us was settled by this court in Weidner v. Schweigart, a case not yet reported.

But it is impossible to support the rejection of O'1 Conner, the endorser of the note, who was called to prove that the defendant had notice of the endorsement, before he acquired the claim on him (O’Conner) which had been-given in evidence as a set-óff. The witness was not a party to the suit, nor was he within the rule of Walton v. Shelly, because his evidence, so far from tending to prevent a recovery on the note, tended to promote it. He was not interested; for if the plaintiff had succeeded, he would have been liable to the defendant on the claim which was made the subject of set-off; and if the defendant had succeeded, he would have been liable to the plaintiff on his endorsement: so that he stood entirely indifferent between them. On this point, therefore, we think there is error.

Judgment reversed, and a venire facias de novo awarded., 
      
      See 9 Serg. Rawle, 385.
     