Saffold, J.
The plaintiff in the Circuit court, who is defendant in error, brought an action of debt, as bearer of a promissory note, payable to A. Robbi-nett, or bearer, against Bryant, as maker. The latter then .pleaded in the following words : “ And the said defendant says, that the said plaintiff is not the [135]*135legal holder of the note declared on.” Defendant farther pleads, nil debet, payment and set-off. On these pleas, the plaintiff, Owen, joined issue, and obtained a verdict for the amount of the note.
From exceptions taken on the trial, it appears—
1. That the defendant proved Robbinett, the payee of the note, to be dead; and in support of the plea of payment, offered the depositions of said Robbi-nett, as evidence; which had been taken, to be used as evidence in a different suit, between other parties, but which were rejected by the court.
2. The defendant also offered evidence, that the plaintiff was not the legal proprietor of, nor had he anj right in the note.
The rejection of this evidence, is the cause assigned for error.
1. Admitting the position contended for,.that Robbinett, if alive, would be a competent witness to prove payment of the note; or, extending -the principle farther, that his evidence would have been admissible to impeach the consideration, according to the doctrine of Todd vs. Stafford.a These principles are not decisive of the question, whether his depositions, as offered, should have been received as evidence. — Nor is it important, in this case, to decide the question, whether a promissory note, payable to bearer, and transferred by delivery merely, is subject, under the provisions of our statute, relating to assigned notes, &c., to every defence which existed against it, in the hands of the .original payee, prior to notice of the assignment.
I recognize the rule of law that, in contests respecting property, after the title has been once regularly litigated, and a subsequent suit is brought to [136]*136contest the same right, the record of the previous recovery, and also the testimony of witnesses on the former trial, (since deceased,) may be admitted as evidence in the subsequent suit; and not only between the same parties, but also for or against persons standing in the relation of privies in blood, privies in estate, or privies in law.—Jackson, ex dem. Bates vs. Lawson.
But torender such evidence competent, the privity must first appear to exist — the former testimony must appear to have been regularly and judicially taken, subject to cross examination ; and the record of the trial must also have been admissible as evidence, and have been so offered.b
In this case, the requisite privity is not shewn to have existed, nor does it appear that the record of the former suit was offered in evidence, or the necessity of it in any manner waived or dispensed with : moreover it does not appear that the party against whom these depositions were offered, or anyone under whom he claims’had an opportunity of cross-examining the witness.
It is, however, contended, the deceased witness’ depositions were evidence, when viewed as the declarations of a party in interest — at least, that Bryant is entitled to the benefit of them as such, because, at the time when made, he had no notice of the transfer of the note by Robbinett, the payee, whose declarations are in question. This view of the subject would allow the statute concerning assigned bonds, notes, &c. a much, more extensive operation than is believed ever to have been given to it by any previous adjudication ; and a more' latitudinous construction than it will admit of. Allowing to the statute [137]*137the same influence on the transfer of the note, by delivery, as if by endorsement, then the defendant is only entitled to the benefit of all payments, &c., made before notice of the assignment; not to the benefit of the payee’s declarations, as evidence of the fact: else, the consequence would be, that,Rafter the payee had in fact disposed of his interest in the note, perhaps, without recourse; or after his circumstances had become desperate, he might be induced to declare the note satisfied or void, and thereby create evidence of a fact which might not exist, and which fact, though a competent witness, he might be unwilling to depose to. Such a course, the law has never tolerated.
In opposition to the argument, that are to be considered, not in the ligb#' M RitSfe' declarations, but as admissions on oat/k the objej iQqq apply, as already stated, that they po; quisites to constitute them evidence, witness, given on a former trial, betvSgerr tne sam parties, or privies. They must assum^d^^t^uy, one character or the other, to become evidence; but being entitled to neither; they were properly rejected—Alexander vs. Mahona—White vs. Killing.b In questions, concerning which hearsay and are evidence, the rule has been farther extended—Pegram vs. Isabellc— but this is not one of that nature.
2. The other point relating to Owen’s interest in the note which he sued on, is no less worthy of consideration. The evidence, or presumption of his right to the note, consisted alone in the fact of possession ; and admitting that the possession alone constituted 'prima /ade-evidence of right,d yet, whether [138]*138or not, the defendant in the court below, should have been permitted to rebut this presumption, is the question remaining to be considered.
It has been often ruled, that one holding a check, bill, or note, as bearer or endorsee, (though a mere agent,) has a legal right, as such, to prosecute a suit, and recover the demand —Mauran vs. Lamba—Pitts vs. Keyser & Keyser.b
But when it becomes material for the purposes of defence, that the plaintiff’s interest, or capacity in the suit should be known, (and the contrary can not appear in any case, as it may be rendered so by the issue,) then to permit the defendant to make proof thereof, does not infringe either of the rules mentioned, and may be highly important in many cases: In' the case of Pitts vs. Keyser & Keyser, above cited, the principle was recognized, that if a plaintiff produced a note, payable to himself, he is to be presumed the righful owner of it, though it contain an endorsement from himself to another; that this, however, is only a presumption, and subject to be rebutted ; and if the interest be really in such endorsee, the plaintiff can not recover. Without such proof, the right of recovery rests on the supposition, that the plaintiff, being an endorser, has satisfied the subsequent holder, and taken up the note. This decision refers, for authority, to the case of Dugan vs. United Statesc; which is full to the point. It is there held, that “ if a person endorses a bill to another, whether for value, or for the purpose of collection, who comes again to the possession thereof, he is to be regarded, unless the contrary appear in evidence, as. the bona fide holder and proprietor of such bill, •and is entitled to recover thereon, notwithstanding [139]
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Saffold, J.
The plaintiff in the Circuit court, who is defendant in error, brought an action of debt, as bearer of a promissory note, payable to A. Robbi-nett, or bearer, against Bryant, as maker. The latter then .pleaded in the following words : “ And the said defendant says, that the said plaintiff is not the [135]*135legal holder of the note declared on.” Defendant farther pleads, nil debet, payment and set-off. On these pleas, the plaintiff, Owen, joined issue, and obtained a verdict for the amount of the note.
From exceptions taken on the trial, it appears—
1. That the defendant proved Robbinett, the payee of the note, to be dead; and in support of the plea of payment, offered the depositions of said Robbi-nett, as evidence; which had been taken, to be used as evidence in a different suit, between other parties, but which were rejected by the court.
2. The defendant also offered evidence, that the plaintiff was not the legal proprietor of, nor had he anj right in the note.
The rejection of this evidence, is the cause assigned for error.
1. Admitting the position contended for,.that Robbinett, if alive, would be a competent witness to prove payment of the note; or, extending -the principle farther, that his evidence would have been admissible to impeach the consideration, according to the doctrine of Todd vs. Stafford.a These principles are not decisive of the question, whether his depositions, as offered, should have been received as evidence. — Nor is it important, in this case, to decide the question, whether a promissory note, payable to bearer, and transferred by delivery merely, is subject, under the provisions of our statute, relating to assigned notes, &c., to every defence which existed against it, in the hands of the .original payee, prior to notice of the assignment.
I recognize the rule of law that, in contests respecting property, after the title has been once regularly litigated, and a subsequent suit is brought to [136]*136contest the same right, the record of the previous recovery, and also the testimony of witnesses on the former trial, (since deceased,) may be admitted as evidence in the subsequent suit; and not only between the same parties, but also for or against persons standing in the relation of privies in blood, privies in estate, or privies in law.—Jackson, ex dem. Bates vs. Lawson.
But torender such evidence competent, the privity must first appear to exist — the former testimony must appear to have been regularly and judicially taken, subject to cross examination ; and the record of the trial must also have been admissible as evidence, and have been so offered.b
In this case, the requisite privity is not shewn to have existed, nor does it appear that the record of the former suit was offered in evidence, or the necessity of it in any manner waived or dispensed with : moreover it does not appear that the party against whom these depositions were offered, or anyone under whom he claims’had an opportunity of cross-examining the witness.
It is, however, contended, the deceased witness’ depositions were evidence, when viewed as the declarations of a party in interest — at least, that Bryant is entitled to the benefit of them as such, because, at the time when made, he had no notice of the transfer of the note by Robbinett, the payee, whose declarations are in question. This view of the subject would allow the statute concerning assigned bonds, notes, &c. a much, more extensive operation than is believed ever to have been given to it by any previous adjudication ; and a more' latitudinous construction than it will admit of. Allowing to the statute [137]*137the same influence on the transfer of the note, by delivery, as if by endorsement, then the defendant is only entitled to the benefit of all payments, &c., made before notice of the assignment; not to the benefit of the payee’s declarations, as evidence of the fact: else, the consequence would be, that,Rafter the payee had in fact disposed of his interest in the note, perhaps, without recourse; or after his circumstances had become desperate, he might be induced to declare the note satisfied or void, and thereby create evidence of a fact which might not exist, and which fact, though a competent witness, he might be unwilling to depose to. Such a course, the law has never tolerated.
In opposition to the argument, that are to be considered, not in the ligb#' M RitSfe' declarations, but as admissions on oat/k the objej iQqq apply, as already stated, that they po; quisites to constitute them evidence, witness, given on a former trial, betvSgerr tne sam parties, or privies. They must assum^d^^t^uy, one character or the other, to become evidence; but being entitled to neither; they were properly rejected—Alexander vs. Mahona—White vs. Killing.b In questions, concerning which hearsay and are evidence, the rule has been farther extended—Pegram vs. Isabellc— but this is not one of that nature.
2. The other point relating to Owen’s interest in the note which he sued on, is no less worthy of consideration. The evidence, or presumption of his right to the note, consisted alone in the fact of possession ; and admitting that the possession alone constituted 'prima /ade-evidence of right,d yet, whether [138]*138or not, the defendant in the court below, should have been permitted to rebut this presumption, is the question remaining to be considered.
It has been often ruled, that one holding a check, bill, or note, as bearer or endorsee, (though a mere agent,) has a legal right, as such, to prosecute a suit, and recover the demand —Mauran vs. Lamba—Pitts vs. Keyser & Keyser.b
But when it becomes material for the purposes of defence, that the plaintiff’s interest, or capacity in the suit should be known, (and the contrary can not appear in any case, as it may be rendered so by the issue,) then to permit the defendant to make proof thereof, does not infringe either of the rules mentioned, and may be highly important in many cases: In' the case of Pitts vs. Keyser & Keyser, above cited, the principle was recognized, that if a plaintiff produced a note, payable to himself, he is to be presumed the righful owner of it, though it contain an endorsement from himself to another; that this, however, is only a presumption, and subject to be rebutted ; and if the interest be really in such endorsee, the plaintiff can not recover. Without such proof, the right of recovery rests on the supposition, that the plaintiff, being an endorser, has satisfied the subsequent holder, and taken up the note. This decision refers, for authority, to the case of Dugan vs. United Statesc; which is full to the point. It is there held, that “ if a person endorses a bill to another, whether for value, or for the purpose of collection, who comes again to the possession thereof, he is to be regarded, unless the contrary appear in evidence, as. the bona fide holder and proprietor of such bill, •and is entitled to recover thereon, notwithstanding [139]*139there may be one or more endorsements in full, subsequent to the endorsement to him, without producing any receipt or endorsement back to him, from either of such endorsers, whose names he may strike from the bill, or not, as he thinks proper.”
In the decision just quoted, however, the court remarked, that the authorities on this subject, are irreconcilable. I find such to be the case, among others, with reference to the decision of the Supreme Court of Pennsylvania.—Gorgerat, et al. vs. McCarty.a It was there decided, that the mere possession of a bill and protest, for non-payment, were insufficient evidence that the plaintiff had paid the subsequent en-dorsee, which must be proved to entitle him to remover.
But another decision of this court, (Johnson, use of Stone vs. English,b) tends farther to settle the practice in this state. It presents the doctrine in an aspect not inconsistent with the decision of this court, or the Supremo court at Washington, already referred to; but recognises a limitation to the presumption of right, arising merely from the fact of possession. .
In the case here cited, the nominal plaintiff offered in evidence a note payable to himself, and by him endorsed to Stone. But on objection, the Circuit court refused to permit the note to go as evidence to the jury. The decision was sustained by the Supreme court, and in the opinion it .was remarked, that, though “ the holder of an instrument of this kind would be presumed to be the owner until the contrary appears, there the contrary did appear by the acknowledgment of the plaintiff, in instituting the suit for the use of the indorsee.”
Hence it appears, that this court considered" the [140]*140plaintiff’s right of recovery to depend on the truth of the fact, whether or not he was the owner of it; and notwithstanding the legal presumption of ownership, it was subject to be rebutted, and if successfully done, the plaintiff must fail in his action. This I think the correct rule of practice, and that it has a general application; and it is more particularly necessary and proper, when from the nature of the issue, as in this case, it may be essential to the merits of the controversy. To determine the issues of payment or set-off, it may be indispensable to know in whom the beneficial interest of the note resides : also the specific fact of ownership was directly in issue, and evidence to rebut what was clearly a legal presumption, was offered^ by the defendant below, nor was any objection to' its competency urged : to the benefit of this he was surely entitled.
It is not intended to intimate an opinion, that if it had appeared in evidence that the'plaintiff held the note only as agent for the rightful owner; and had, by his authority, express or implied, orally or in writing, sued in his own name, that he could not have so recovered. We decide, however, that the defendant should, under the issues, have been permitted to investigate the plaintiff’s interest in the note, and contest his authority to sue upon it; and had it been found that he had no legal authority to sue on the paper he should have failed in the recovery.
The judgment must therefore be reversed, and the cause remanded.
15 John. 539