
    Close v. Fields.
    The possession by the acceptor of a draft drawn with a blank for the name of the. payee and without endorsement, is prima facie evidence that the draft had been in circulation and was taken up by the acceptor. But, upon proof of a custom to leave drafts for acceptance, or other fact lending to controvert the presumption arising from the possession of the instrument, the failure of the acceptor to prove to whom he paid it would leave the question ot!- payment or not” to be found by the jury, subject to tlie power of the court to grant a new trial, as in other cases, if the verdict should be against the evidence.
    Error from Galveston. The defendant appeared and read in evidence a draft drawn upon him by the plaintiff, in the following words : l-Iiram Close, Esqr., Trustee:
    You will please pay-or order, four hundred dollars, par funds, when collected, of the proceeds of a note now in your hands drawn by Kobert Bose and Bobei-t D. Johnson, and made payable to me, for six hundred dollars, par funds.
    Wm. Fields.
    Galveston, March 24th, 1841.
    Accepted, Hiram Cdose.
    The defendant’s counsel asked the court to instruct the jury that the possession by the defendant of this draft was prima facie evidence of the payment of the same by him; which instruction the court refused to give.
    The court was further asked to instruct the jury that possession by the defendant of the draft was prima facie evidence of payment by him, and raised a presumption in his favor of that fact, which, if not rebutted, would be taken as true; which instruction the court refused to give.
    The refusal of the court to give the instructions asked was assigned as error.
    
      J. B. Jones, for plaintiff in error.
    It is very clear, not only from the authorities cited on the former investigation of this case in the Supreme Court, but from many others, that an instrument like the one under consideration is equivalent to one payable to bearer or like a blank indorsement on a promissory note or bill of exchange. (Story on Prom. Notes, secs. 37, 39; Van Stap-horst v. Pearce, 4 Mass. E., 258.)
    The filling up .the blank was not necessary. (8 Ala. E., 26S; U. S. Dig. for 1847, 412, art. 53; Gilham v. State Bank, 2 Scam. E., 245; Chewning v. Gate-wood, 5 How. Miss. E., 552; McDonald v. Bailey, 2 Shop. B., 101; 2 Sup. 17. S. Dig., 61(5, art. 323; Sawyer v. Patterson, 11 Ala. E., 523; IT. S. Dig. for 1848, 383, art. 58.)
    
      Sherwood §• Goddard, for defendant in error.
    The blank draft with Fields’ signature was evidence only of the fact that he drew it; but in that state it contains nothing to raise a presumption that Fields ever received it back or had it in his possession, or that if was ever put in circulation after it was accepted. The words of acceptance on the face of the draft were not evidence for the defendant, without proof that the paper so accepted had been put to use by plaintiff. - *
    Had the blank been filled the presumption might have arisen, perhaps, in certain circumstances, that the draft liad been in the hands of a bona fide holder, to whom payment liad been made; but the blank never having been filled, there was no bill or draft in existence calling for payment to anybody; it was merely waste paper; it is neither a draft, bill, note, check, nor any other instrument or contract known to the law or recognized by mercantile usage. . (Story on Bills, sec. 54; Chitty on Bills, p. 62, ch. 5; Bayley on Bills, cli. 1, see. 10.)
    The only presumption that could arise in such case is that the draft was drawn by Fields and sent to Close for acceptance, with the view of putting it to use when accepted and returned. (2 Campb. E., 439.)
    It cannot be presumed that the paper was ever put in circulation with Close’s acceptance on it. Had it been, it was no draft until the name of a payee was inserted, and then it could only ijass so as to authorize Close to pay it under the indorsement of the payee.
    The presentation of the paper to Close by a third person, without the name of a payee being inserted or indorsed, would have afforded to Close no other presumption than that tile person presenting it came by the paper wrongfully. If he paid and took up a piece of paper of that kind, he paid it in liis own wrong, for Fields had not ordered him to pay it to any one.
    To allow this paper to stand as evidence of payment would be to permit a party to manufacture evidence in his own favor. It would, moreover, violate, practically and in effect, all the rules adopted in mercantile usage to protect parties interested in bills of exchange: The mercantile law knows no usage allowing drawees of bills to pay blank paper.
    It is also submitted whether the failure on the part of Close to show a payee does not, in this case, raise a strong presumption that there was none, on the principle that the omission to produce evidence, peculiarly within the knowledge of a party, turns every doubt against him.
    u Possession of a bill which has been in circulation by the acceptor is prima “facie evidence of its payment by him.” (Baring v. Clark, 19 Pick. E., 220.) The inference is left for the court to draw. {Vide, also, Wilkinson et al. v. Phelps, 16 La. E., 304.)
    
      Note 70. — Same case, 13 T., 623.
   Wheeler, J.,

did not sit in this case.

LipscOMB, J. This case was before the court on a former trial between these parties, and the judgment was reversed and the case remanded to the court below for a new trial. (2 Tex. R., 232.) There lias been another trial, and the cause brought up again by a writ of error. In the former trial the error relied upon was the refusal of the court to admit this draft in evidence, and on that assignment of error we reversed the judgment, ruling that it was admissible as evidence of payment when offered by the defendant, upon whom it had been drawn, and we expressly ruled that, under the circumstances, it was prima facie evidence of payment. If prima facie evidence is not explained and rebutted it must be taken as true. We believe that the question of law now presented was fully discussed and decided upon in our former decision, and we do not feel ourselves again called upon to reiterate the grounds upon which that decision was predicated. We were, perhaps, not sufficiently explicit, and may not have been correctly understood, in discussing the manner in which the presumption in the defendant’s favor arising from his possession might be rebutted, and should have said, that if this presumption had been controverted by other evidence, that the fact of the defendant’s not showing to whom lie had paid the order might be a presumption against him; and if it had been in proof by the plaintiff that, according to the course of business, it was not an unusual tiling to leave such orders in the hands of the person on whom it had been drawn, or any other testimony going to rebut the presumption that the failure of the defendant to show to whom payment had been made, would be a circumstance calculated to weaken the presumption arising from his possession of the order; but until some such evidence, calculated to weaken the presumption of payment, lias been offered the defendant cannot be called upon to fortify it by additional proof. If it had been the intention of the maker of tlie order lo liegotiate this order after its acceptance it would have been more business like to have made it payable to his own order, and only indorsed it when lie had.negotiated it; and it is not believed to be the custom of those dealing in such paper to leave an order like the one we have been considering in the hands of the person upon whom it is drawn, and if so done lie should be prepared to show by proof that it had been so left without payment.

The judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded.  