
    George Townsend v. Henry S. Billinge and William T. Jones.
    The production of a check, drawn payable to “ bearer,” upon the trial, is sufficient prima fade evidence of title, to enable the plaintiff to recover upon it.
    Appeal from a j udgment of tbe general term of tbe MariBe Court. The action was brought on a check, alleged to have been drawn by defendants under their firm-name of Billinge & Jones, on tbe Importers’ and Traders’ Bank, for $400, wbicb was averred to have been “ duly delivered ” to plaintiff before maturity, and to have been presented at maturity, but payment refused,-of wbicb defendants bad due notice.
    Billinge alone was served with process. His answer admitted tbe partnership at tbe date of drawing tbe check, but denied that tbe defendants made tbe check, or that it was duty delivered to tbe plaintiff, or that plaintiff was tbe lawful owner and bolder thereof.
    
      Upon the trial, it appeared that Jones signed the check in the firm-name, and got it cashed by one Terhune, a broker. No assignment or delivery of the note to the plaintiff was proved. The plaintiff, however, produced the check upon the trial. The defendant’s counsel moved to dismiss the complaint, upon the ground that there was no proof of ownership in the plaintiff. The court overruled the motion, and rendered judgment for the plaintiff. ’ Defendant appealed to the general term, where the judgment was affirmed, and he now appealed from the judgment of the affirmance.
    
      G. W. Sanford, for the appellant,
    contended that plaintiff was bound to prove affirmatively the transfer and delivery to him. $ie Bank of Geneva v. Guliclc, 8 How. Pr. E. 51; Parlcer v. Tot-ten, 10 ibid. 233; 4 Sandf. S. C. E. 696.
    
      Frederick. G. Burnham, for the respondents.
   Daly, J. —

The check was payable to bearer, and was therefore transferable by delivery. The answer merely averred that the plaintiff was not the lawful holder or owner, and the production of the check upon the trial, in the possession of the plaintiff, was prima facie evidence of transfer and title. It was proved that the check was signed on the 6th of Nov., 1856, and admitted by the answer that the defendants were then partners.

The plaintiff was entitled to recover, and the judgment should be affirmed. James v. Chalmers, 2 Selden, 209 and 214.

Judgment affirmed.  