This was an action of debt commenced before a justice of the peace. The names of the parties on the justice’s docket, are Joshua Smith, for the use of J. W. Cox, against John Harris and Thornton F. Gorham. A sealed note for the payment of money, executed by the defendants and payable to Joshua Smith, was filed as the cause of action. There was only one plea, and that was a failure of part of the consideration for which the note was given. The justice gave judgment for the plaintiff. The defendants appealed to the Circuit Court, and the plaintiff there also obtained a judgment.
On the trial in the Circuit Court, the plaintiff introduced the note in evidence, and then rested his cause. The defendants offered to read in evidence the following assignment indorsed on the note: “ I assign the within to J. W. Cox. Aug. 4, 1835. Joshua Smith.” This assignment was objected to as evidence, because its execution was not proved; and the objection was sustained. The rejecting of this evidence is the only error assigned.
The plaintiff’s property in the note was not put in issue by the plea; nor would it have been in issue, had non est factum been pleaded. To authorise the introduction of evidence dehors the note, in order to prove the plaintiff’s want of property in it, a plea in denial of such property was necessary. Gully v. Remy, July term, 1820. But the defendants contend, that the plaintiff himself, by producing the note with the assignment on it, has shown that the note does not belong to him, and that the action on it in his name cannot be supported.
We are of opinion, however, that the assignment does not of itself show, under the circumstances of the case, that the property of the note was not in the plaintiff. He was the payee of the note, and his possession of it, notwithstanding the *551indorsement, was prima facie evidence that the note was his. This is decided by the case of Hanna v. Pegg in this May term, 1822, and by the case of Dugan v. The United States, 3 Wheat. Rep. 172 (1).
C. C. Nave, for the appellants.
C. Fletcher and O. Butler, for the appellee.
As the defendants, could not, under the pleadings, introduce-any extrinsic evidence of the plaintiff’s want of property in the note, and as the indorsement was not of itself, under the circumstances of the case, any evidence of such want of property, it follows that the assignment was properly rejected. The reading of it could have been of no possible benefit to the defendants.
The question whether the assignment, had it been material evidence for the defendants, could have been read by them without proof of its execution, does not belong to the ease.
The judgment is affirmed with 5 per cent. damages and costs.