OpinioN by
Judge Hardin :We do not see from the bill of exception, that the reading of the clerk’s endorsement of the time of filing the answer of the defendant in another suit between the same parties was in any way relevant or pertinent to the issue submitted to the jury; and we therefore think, the matter so offered as evidence, should have been rejected.
We are further of the opinion that the Court erred in instructing the jury, as to the effect of the evidence conducing to show the note to have been in the defendant’s possession in 1867. Such possession if sufficiently proved was certainly prima facie evidence of the satisfaction and surrender of the note, and it w'as proper to so instruct the jury leaving' them, free to judge from all the evidence, whether the note had in fact passed out of the possession of the plaintiff into that of the defendant or not. But the concluding words of the instruction, peremptorily required the jury to find for the defendant, if they believed from the evidence the defendant had possession of the note at any time in the year 1867, although there may have been other evidence to explain that possession consistently with the plaintiff’s right to the note, or to overcome and rebut the presumption of payment arising from such possession; which was manifestly misleading and erroneous.
Russell & Helm, for appellant. Mix, forWherefore, the judgment is reversed and the cause remanded a new trial and other proceedings not inconsistent with this