Jonathan B. Heald vs. Abel L. Davis, 11 Cush. 318

Dewey, J. We do not question the correctness of the rule as stated in the cases of Mc Gee v. Prouty, 9 Met. 547, and Baring v. Clark, 19 Pick. 220, that when a promissory note or bill of exchange has been negotiated, and afterward comes into possession of one of the parties liable to pay it, such possession is primá facie evidence of payment by him. But this rule of law does not apply to a possession by one of two joint promisors in an action by him to recover of the other one half the amount thereof.

In the former case, the possession is only to be accounted for, in the absence of evidence in relation tc it, by the fact of payment, by the party holding it. Not so, as between copromisors. The possession by one of them is primá facie evidence of payment of the note by them, or one of them; but inasmuch as the possession could not be by each individually, it would be found with one, although both had contributed equally to the payment.

In other words, the possession by one does not, as against his copromisor, raise that inference of exclusive payment by the holder that would arise, where the note was held by an indorser, or a surety, or a sole promisor. Exceptions overruled.