23 Ala. 717 | Ala. | 1853
Wooley, the nominal plaintiff, is allowed to testify without objection, and we must regard his evidence the samo as if made by any disinterested witness ; his interest, which was waived, being against the party who examines him.
Tho question comes up, What is the legal effect of the facts to which he deposes I That the noto sued on was signed and delivered by the defendant, is admitted by 'the pleading ; for, under our statute, its execution could only bo put in issue by a sworn plea, which has not been put in. Being sued for the use of House, tho presumption is, that he has the beneficial interest in it; that lie is the possessor of it, and that the same is in suit by his direction, he being responsible for the cost.
Now if the note was executed, that is, signed and delivered by Bird, the defendant, as a valid security, to House or any one else, and it came to his possession, an action lies in the name of the payee mentioned in tho note, for tho use of the party really entitled. It does not follow that, because the payee never owned or had possession of tho note, and never put it in circulation, it is invalid, for the payor may have put it in circulation in this form, and, if ho did not, he should have pleaded that fact in bar of the recovery. Failing to do so, and thus admitting its execution, the note as against him imports a consideration, and this presumption is not repelled by merely showing that the payee had no connection with it.
Bird made the note; and the manner in which it got into circulation, and the circumstances under which it was made, are presumed to be within his knowledge; and if ho would avoid it, ho, and not the holder, must take upon him the burthen of proof; must either deny its execution by him on oath, or, admitting its execution, must show that it was without consideration. In Thompson v. Armstrong, 5 Ala. R. 383, the point under con
There is no evidence in this caso that the note was put in circulatiun by fraud, so as to require- the holder to prove that he was a hona jtde possessor; nor docs the cor.;) fall within the influence of the cases of Wallace v. The Br. Bank, 1 Ala. 569, and Brewer & Holley v. Morgan, 13 Ala. 551. On the contrary, tho proof, as we havo said, is not inconsistent with a valid delivery of the note to House, who has it in possession, and in
There was no error in the rulings of the court, and the judgment must be affirmed.