BIRD vs. WOOLEY, use, &c., 23 Ala. 717

CHILTON, C. J. 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 consideration appears to have been settled, in that case, the note was in the form prescribed by tho Bank for discount; was payable to Andrew Armstrong, cashier, and was signed by the defendant and three others. The plaintiff proved the defendant’s hand-writing to the note, and read the instrument to the jury, and closed his proof. The defendant then proved that the note had never been discounted at tho Bank; that tho Bank had not and never had any interest in the note, laid no claim to it, and had not authorized the suit.

The defendant proved that Armstrong was cashier of the Bank when the note was made, and that it was in the usual form of notes discounted by the Bank. There was in that ease, as in this, a total want of proof to show how the person for whose use tho suit was brought had acquired the note. Under this state of facts, the question was raised by the request of the defendant for charges, whether the nominal plaintiff or beneficiary was not required to prove a consideration as passing from one or the other of them, and whether the facts did not tend to show that the note was fraudulently put in circulation.

The court, however, held, substantially, that tho facts id evidence did not east the onus of proof of consideration on the plaintiff; that the note furnished prima facie evidence that the debt was duo from the defendant, and also, that the facts did not warrant the court in referring it to tho jury to ascertain whether the note was not put fraudulently into circulation.— This case is decisive of tho one before us.

In each, the payee, who never had the note, nor claimed any interest in it, is the plaintiff, for tho use of a third party, who failed to show how he acquired an interest, and we are unable to distinguish between them. The fact that one is mercantile paper and tho other is not, makes no difference, in the view in which we aro considering the ease, as in neither case was there an inducement—See also The Plantere’ & Merchants’ Bank v. Blair & Morroh, 4 Ala. Rep. 613.

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 whose hands it is evidence of a debt owing by the maker for the use of House, until the contrary is shown.

There was no error in the rulings of the court, and the judgment must be affirmed.