By the Court.
Lyon, J.,delivering the opinion.
1. The defendant in the Court below, James E. May, having plead and put in proof the notes of the plaintiff, James R. Dorsett, was entitled to have the same allowed by the jury as a set-off, and as the jury failed so to find, their verdict was contrary to evidence, and the Court erred in refusing to grant a new trial on this ground.
2. It is true, that there was proof that the defendant had, after trading for these notes on the plaintiff, transferred them to third persons, but this does not establish the fact, or even raise a presumption, that he was not the legal holder at the commencement of the suit, for both facts may be true, and probably were. The notes were negotiable, and the defendant having properly pleaded them as a set-off, the legal presumption was, that he was the holder at the commencement of the suit. The onus was on the plaintiff to show affirmatively that the defendant was not so in fact, and so the Court substantially charged the jury. The verdict was contrary to this charge, and the defendant was entitled to a new trial on this ground.
3. A new trial was moved for on another ground, that is, that the Court erred in admitting the testimony of the witness Austell, as to the spuriousness of the bank bill, which was the foundation of the plaintiff’s action. This ground was not pressed in the argument before us. Nor do we see any good objection to the evidence. The witness was a bank officer, engaged in the banking business, and considered himself a good judge of counterfeit money. The witness not only gave his opinion, but the facts upon which this opinion was based. The objection to the evidence was on the ground that “ there was higher and better evidence.” What that higher and better evidence of the fact was, does not appear.
Whether there was sufficient evidence before the jury, that the defendant May did, in fact, pass and pay the bill in controversy to the plaintiff, to authorize them to so find, was much discussed before us. And although we do not put our decision on that ground, it is, nevertheless, due to the parties, and to the Court below, for us to state frankly, that in *119our opinion, it is not. The evidence of W. E. Smith, who received the money from the defendant for the plaintiff, and amongst which this bill must have been, if it was ever passed and paid by the defendant to the plaintiff, says, at the time, in 1855, when he received the three hundred dollars from the defendant for plaintiff, the defendant remarked that he believed it was all Georgia Railroad money. This called the attention of the witness immediately to the fact, of what kind of money was paid him, having the money then in his hand, and he turned down the ends of the bills, exposing about one-half of each bill, and looked through them, and he, the witnesss, remarked they were all on the Georgia Railroad Bank. He thought they were all on that bank. The bill in controversy purported to be a bill on the bank of Cheraw, S. C., for $100. Here was positive and direct evidence that the defendant passed no such bill to the plaintiff at that time; yet, it must have been at that time or not at all. It is not possible to see how the witness could be mistaken. To overcome the force and effect of this evidence, and also to establish a right to recover, the plaintiff introduces but. one other witness, one Thomas J. Foster, who testifies, that he was present, not when defendant delivered the bills to Smith for the plaintiff, and when this particular examination was had as to the kind of money, but when Smith delivered the money to the plaintiff; that there were two $100 bills, one on the Georgia Railroad Bank, and the other on the same bank with the one sued on. He did not know, but thought the bill sued on was one of the bills ; it was a bill for the same amount, with one corner torn off, and on the same bank ; could not say that the bill sued on was the same, but that resembled it very much in appearance, and he thought it to be the same bill; witness was not doing business for plaintiff nor Mr. Foster; was accidentally present ; did not notice the money very particularly. This evidence is pretty clear, and if true, the bill in controversy must have been one of the bills that the witness, Smith, paid over to the plaintiff. But how it it possible for a witness who happened to be present when a sum of money was passed from the hands of one man to another, to remember, describe, and absolutely identify, the specific bills, after the lapse of four years and a half — for this is the time that intervened between the periods of passing the bill and the giving *120in of his testimony — it is impossible to conceive! Add to this the fact that the witness had nothing whatever to do with the matter; had no connection with either of the parties; did not particularly examine the bills; his attention was not called to it in any way, either as to the character or kind of bills, so as to fix the particular bill or its characteristics in his mind; and the statement becomes, to say the least of it, a most extraordinary one. What a marked contrast there is between the testimony of this witness and that of Mr. Austell. This gentleman was accustomed to deal in money; he carried a $ 100 bill from plaintiff to Charleston to pay a debt for him; the bill was condemned as counterfeit ; his attention was thus called particular^ to that bill; he examined it, knew it to be counterfeit, yet he could not identify the bill in Court as the one that passed through his hands, though the witness Foster could, from an accidental glance of it as it passed through the hands of others, in a bundle of other bills, after a lapse of four years and a half! It would be useless to follow the investigation further, for, as I have already stated, this view of the evidence is not conclusive, in our own minds. Our impressions are against the sufficiency of the evidence and for the reasons I have stated. The question is an open one for the parties to press further or not, as they may consider most advisable. The new trial is ordered because the verdict was contrary to law and against the evidence, in the exclusion of the set-off pleaded and proven by defendant.
Judgment reversed.