Several points were made by the plaintiff, in the trial of this cause in the court of common pleas, upon which the plaintiff requested the ruling of the judge. 1. The first was, that the possession and production of the note by the plaintiff, was prima facie evidence that he had paid and taken it up, and was conclusive unless rebutted. The presiding judge ruled that the possession of the note was a circumstance from which it was competent for the jury to infer that the note was paid by him.

*551We have no doubt that where a promissory note has been negotiated, and afterwards comes into possession of one of the parties liable to pay it, such possession is prima facie evidence of payment, and that he is to be treated as the bona fide holder, unless the contrary is made to appear. Dugan v. United States, 3 Wheat. 172. Baring v. Clark, 19 Pick. 220. Northampton Bank v. Pepoon, 11 Mass. 288. The ruling of the judge was not so pointed; but it was clearly to that effect, and, upon the evidence, was sufficiently favorable. For though possession is prima facie evidence of payment, it does not follow, as a consequence from the possession, that M’Gee paid it; because it might have been more for the interest of Thompson, if he, and not the plaintiff, had paid the note, to sue in the plaintiff’s name, rather than in his own, in the belief that the plaintiff might recover against Bell, when he could not. But however this may be, the case does not depend upon the ruling on this point.

2. The plaintiff contended, that the terms and effect of a written contract cannot be varied, altered or controlled by parol testimony, and therefore it could not be shown by parol that Bell was a surety only. But the presiding judge ruled that it was competent to show it by parol testimony.

The principle of law, in respect to the exclusion of parol testimony in the construction of written contracts, is perfectly settled ; but it is not applicable to this case. The attempt to apply it arises from a mistaken view of the relations and rights of the respective parties. The law respecting sureties, and their obligations to contribute proportionably, does not arise out of contract between them, but is founded on principles of equity ; and the obligation is enforced, as a legal lia bility growing out of the mutual relation. As between these parties, therefore, Bell, when sued, might show that he was only a surety, as the maker of a note may show, as between himself and the payee, that he signed it for the accommodation of the payee. Grafton Bank v. Kent, 4 N. Hamp. 221. Warner v. Rice, 3 Wend. 397.

This suit is not on the note; that is only a part of the *552evidence in the case, offered by the plaintiff, and is not conclusive upon Bell.

3. The plaintiff also requested the court to instruct the jury, that though it might appear that Bell was a surety as respected Prouty, yet unless knowledge of that fact should be brought home to the plaintiff, Bell would still be liable, as principal, as to him ; and that though Bell might have been merely a surety of Prouty, as between him and Bell, yet if he intended to be liable as principal, so far as Thompson and M’Gee were concerned, he would still be liable in this action. But the court declined instructing the jury as requested.

It is true that Bell did not add the word “surety” to his name, and he might therefore be liable to a bond fide holder oí the note, without notice, to all the responsibilities of a principal. But as between the sureties themselves, we are oí opinion that he may prove that he was merely a surety. A want of knowledge of the fact, on the part of the plaintiff, does not alter his relation to Bell. They are still sureties; and because the plaintiff has taken up the note, it does not change his character as a co-surety. 4 N. Hamp. ubi sup. Taylor v. Savage, 12 Mass. 102. Harris v. Brooks, 21 Pick. 195. Lapharn v. Barnes, 2 Term. 213.

As to the latter part of the prayer, it does not appear what the instruction was; but upon the evidence, as reported, no such intention was proved. On the contrary, it did not appear that Bell knew that M’Gee had put his name to the note, till after it was discounted. The want of instruction, therefore, became immaterial, so far as we can now judge.

It is not necessary for us to consider whether Bell would be liable to M’Gee, in a separate action, under the facts dis closed, for the whole or any part of the money now demanded. It is very clear that he is not liable jointly with Prouty, and therefore is not chargeable in this action.

Exceptions overruled,.