The opinion of the court was delivered by

The only ground upon which a new trial is asked for is the refusal of the judge at the circuit to admit- the evidence offered on the part of the defendants; and *172the only question to be determined here is, whether that evidence, or any part of it, ought to have been received.

The law upon which the solution of this question depends is well settled and familiar.

The fact that the plaintiffs were in possession of the check in question, was prima facie evidence of their property in it as bona fide holders. They were not bound, in the first instance to account for their possession of it; and in the absence of anything to raise suspicion as to their title, the matters admitted and proved on the trial, were, no doubt, sufficient to entitle them to their verdict. But if it had appeared that Draper, being the true owner of the check, had parted with it without any consideration, or through fraud, &c., the plaintiff could not have recovered without showing how they came by the check, and what value they had given for it. 3 Kent’s Com. 79, and cases cited in notes a and b ; 2 Greenl. Ev. 147, § 172; Chitty and Hulme on Bills 260 ; 2 Starkie on Ev. 171.

The defendants’ offer, in this case, went far beyond what was necessary to put the plaintiffs to proof that they came to the possession of the check bona fide, and for value. The defendants themselves assumed the burthen of proving that the plaintiffs gave no value for the check, and were not bona fide holders. If they had been permitted to prove, and had succeeded in proving the facts stated in their offer, there can be no doubt, I 'think, that their defence would have been complete.

It will not do to say, as was urged by the plaintiffs’ counsel, that Draper has no right to be heard in this matter. If he is, as the defendants offered to prove, the real and sole owner of the check in question, they had an undoubted right, at his instance, and in his interest, to interpose the defence attempted to be set up in this case. To hold otherwise would be, in effect, to admit that a court of justice may sometimes, knowingly, permit itself to be used in furtherance of a meditated fraud.

I think that the evidence offered by the defendants at the *173trial, and rejected by the court, ought to have been received. The verdict must therefore be set aside, and a new trial granted.

The Chief Justice, and Justices Elmer and Vredenburgh, concurred.

New trial granted.