
    Shackelford & Co. v. Wheeler.
    A witness is competent, upon being released by the payor, to prove that the note sued on by a subsequent holder claiming under the payee’s indorsement in blank, was transferred to him, the witness, by the payee, and that the payor settled it with him in full.
    Where the defendant, the payor of a note sued on, payable on demand, and negotiated by the indorsement of the payee in blank, proved that he had paid the note to a former holder of the same, and that the note was not delivered up to the defendant, because it was not in the said holder’s possession, the payor informing the said holder that it was in the possession of a man who was connected in business with the present plaintiffs: Held, That the testimony was meagre and unsatisfactory, but that it was sufficient to have required from the plaintiffs some evidence of the circumstances under which they recovered or retained the possession, of the note.
    Error from Harris. Tiie plaintiffs sued as holders of a promissory note, dated 2oth January, 1S49, and made payable to Charles J. Glaviehe or order, on demand, the same being indorsed by the said Glaviehe, in blank.
    The defendant, tiie payor, pleaded that lie had paid the note; that the plaintiffs never were tiie owners of the said note; that they hold tiie same improperly, and arc not and never were entitled to bring suit thereon ; and by an amended answer, lie pleaded that the note had been transferred by tiie payee to the firm of Reynolds & Lyon ; that on the dissolution of the said firm, tiie ownership and possession of said note was transferred to Reynolds, and that the defendant, in tiie month of October, 1849, liad paid to and settled the said note with the said Reynolds. The plaintiffs excepted to tiie amendment, on the ground that it was vague and uncertain, ami inconsistent with the first answer. Tiie exceptions were overruled.
    On the trial tiie note and tiie indorsement in blank constituted tiie only evidence offered by the plaintiff-.
    The defendant relied on the testimony of J. M. Reynolds, who, on being released from liability by the defendant, testified, that in tiie month of June, 1S49, lie. purchased tiie note from tiie payee, with merchandise; this purchase was made by him as one of tiie, firm of Reynolds & Lyon; that on tiie dissolution of the said firm, the note became his property, and that in the month of October, 1S49, the defendant settled the note with him in full; that he did not deliver the said note to Wheeler, because it was not in his possession; that he veas informed by Wheeler that it was in Washington, in the possession of Gould, a partner of the firm of Shackelford, Gould &'Co.; and he was further informed by Wheeler that the note liad been left with Gould for collection. The plaintiff excepted to the competency of Reynolds as a witness. There was judgment for the defendant.
    
      J. G. Walker, for appellants.
   Hemphill, Oh. J.

Several grounds have been assigned for a reversal of the judgment; and in a long and elaborate argument these grounds have been discussed by the counsel for (he appellants. " The earnestness and ability of counsel are entitled to commendation, but we must decline an investigation of many points which have been urged upon our attention.

One of the causes assigned for error is, the overruling by the judge of the plaintiff’s exceptions to the amended answer of the defendant; aud it is contended that the amended answer is so inconsistent with and repugnant to the original answer as to be either a nullity or impertinent, and would not justify the admission of evidence under it. The inconsistency complained of in the pleading is not perceived. In the original answer, the defendant averred that he had paid the note, and that the plaintiffs never were the owners of the said note; that they hold the same improperly, and never were entitled to bring an action thereon. The defendant, it is true, avers that he liad paid the note; but to infer that by such averment be must have intended to allege that lie had paid to the plaintiffs, is a strained conclusion, when he couples such averment with a denial that they ever were the owners of the note. What may be the legal effect of the plea that they were never the owners of the note, is not material in this ease. It would produce one, effect, at least, viz, that a plea alleging that some other person was the owner of the note could produce no surprise upou the plaintiff'; and that such a plea was not inconsistent with the previous averments of the defendant, to the effect that he paid the note and that the plaintiffs were never owners of the note.

In relation to the competency of the witness, (J. M. Reynolds,) it is sufficient to say that tiie release offered and accepted by the witness is'deemed sufficient to have exempted him from all interest in the event of the suit.

The, prima facie proof of ownership in the plaintiffs, resulting from their possession of the note, is rebutted by the uncoutradieted testimony of this witness. He shows that ho purchased it from the payee for a valuable consideration in June, 1849 ; that the defendant paid it to him in October, 1849, and received bis receipt as evidence of its discharge; and that the reason wily it was not then given up was ids being in possession of a partner of the plaintiffs, and, as the defendant then informed the witness, it was in his hands for collection. The facts of the case are meagre, and the witness should have been required to explain whether lie had ever had possession of the note, and why he did not receive his information of Us whereabouts from the payee of whom he purchased, and not from the maker at the time of its payment. The evidence is not very satisfactory; but it is sufficient to liave required from the plaintiffs some evidence of the circumstances under which they received or retained possession of the note. This was not given. There was nothing in their favor except the bare possession, and this was not sufficient to countervail the facts proved by the witness.

Judgment affirmed.  