
    Wm. Kincaid, Ex'r., vs. John Kincaid.
    The possession of an order by him on whom it is drawn, is prima facie evidence that the articles therein specified, were delivered according to request.'
    John Kincaid sued Wm. Kincaid, executor, and Sarah McNew, executrix of Wm. McNew, by warrant, and a judgment was rendered by a justice of the peace, in favor of the defendants. The plaintiff appealed, and the case was tried by a jury in the circuit court of Claiborne county, under the direction of judge R. M. Anderson. Anote was read to the jury by the plaintiff, and - the defendants offered proofs of a sett off, to wit, orders drawn on the testator of the defendants, for the delivery of certain articles of merchandize therein specified. There ,was no proof of the actual delivery of the articles specified.
    The judge charged the jury that an order did not of itself import a consideration, or that the property named was ever in fact delivered to the drawer. It may be looked on as a circumstance, amongst others from which to infer a consideration and a delivery.
    The jury rendered a verdict for the plaintiff, upon which a judgment was rendered. The defendants appealed.
    
      R. J. McKinney, for the plaintiffs in error.
    
      Sneed, for defendant in error.
   Turley J.

delivered the opinion of the court.

In this case, we think the circuit judge erred in saying to the jury that an order does not, in and of itself, import a consideration, or that the property named was ever in fact delivered to the drawer.

We hold, that the possession of an order by the person upon whom it is drawn is prima facie evidence that the articles specified therein, were delivered according to request. 2d Greenleaf’s Treatise on Evidence, page 91, sec. 114.

The judgment of the circuit court is therefore reversed, and the case remanded for a new trial.  