
    Arthur Smith vs. Samuel Prestidge and Eliza A. Pendleton, administrator and administratrix of Z. E. Pendleton, deceased.
    In an action of trover for a note payable to bearer, the possession by the defendant of the note, will be prima fade evidence of his ownership; which will not be rebutted by proof that the note formerly belonged to the plaintiff. It seems it would be otherwise if the note were payable to order and not indorsed.
    Where a holder sues on a note and his title is properly questioned, he must make out his title; but when the holder is sued for a note payable to bearer, his possession will be a sufficient protection, until a better title is shown.
    In error from the Lawrence circuit court; Hon. Thomas A. Willis, judge.
    Samuel Prestidge and Eliza A. Pendleton administrator and administratrix of Zebulon E. Pendleton deceased, sued Arthur Smith in an action of trover, for a note described in the declaration as follows, viz.: “ a certain promissory note in writing, of great value, to wit, of the value of six hundred and six dollars and Ü[j, and drawn by one H. B. Sutton and Solomon Sutton, whereby the said H. B. Sutton and Solomon Sutton promised to pay the said Zebulon E. Pendleton, or bearer, a certain sum of money, to wit, the sum of six hundred and six dollars and eighty-six cents, on or before the first day of January, 1840, for value received.
    The defendant plead not guilty, and afterwards withdrew his plea and craved oyer of the letters of administration. A trial was had without any other plea being filed, which resulted in a verdict for the plaintiffs below.
    It appears, by the bill of exceptions, that on the trial it was proved that the note sued for was in the possession of the plaintiff’s intestate sometime previous to his death; but at the time of his death, the witnesses stated they did not know in whose possession the note was or who owned the note, which was payable to Z. E/Pendleton, or bearer. After the death of Pendleton the note was found in the possession of Arthur Smith, the defendant, who claimed it as his property. This was all the proof. Whereupon the court instructed the jury that “if they found the note sued for to have been once the property of Pendleton, and no proof had been adduced that he ever parted from the ownership of it, and moreover, that the defendant had not shown how he came into possession of the note, they must find for the plaintiff.” To this' instruction exceptions were taken, a new.trial moved for and overruled, and this writ of error •prosecuted by the defendant Smith.
    
      John D. Freeman, for plaintiff in error.
    1. The court erred in permitting a trial when no issue was made up and when a demand of oyer was pending and not given by plaintiffs. Gould’s Pleading,-434, sec. 36; lb. 440, 442, sec. 43.
    2. The court erred in overruling the motion for a new'trial. It was proved by plaintiffs that “sometime previous to Pendleton’s death he was in possession of the note sued on,” but there is no proof that the note was Pendleton’s property at that time, nor is there any proof that he owned or held the note in possession at his death. The note was made payable to bearer. The defendant was the bearer, the possession of the note by him was evidence of ownership by him, and the mere fact that Pendleton, in his lifetime possessed the note, does not rebut the legal presumption • of title in the defendant. The note was transferable by delivery; the party from whom defendant re-, ceivedjt is dead, his administrators know nothing of the consideration received for the note by their intestate; the transaction is buried with'Pendleton, and the defendant relies on the possession of this negotiable note as evidence of his title. If the possession of the note by Pendleton in his lifetime was evidence of property'in hiél, surely, possession of the note by defendant after Pendleton’s death, is evidence of title in defendant.
    3. The court erred in its instructions to the jury, that if “ defendant did not show how he came into possession of said note, they must find for plaintiffs.” The note was payable to bearer and transferable by delivery ; its possession by defendant was evidence of ownership until plaintiffs proved a better title in their intestate.
    
      J. F. Foute, on same side.
    Upon the state of facts the charge given by the court is certainly an erroneous charge. A promissory note payable to bearer is transferable by delivery, and the holder has all the rights thereto, and power to collect, sue, or transfer that belonged- to the person to whom it was originally delivered, and whose name may be used as payee.
    The possession of a chose in action, or note payable to bearer is evidence of title thereto, and this presumptive evidence is so strong that it shall stand in support of the holder’s right, until other evidence is introduced impeaching or casting just suspicion on the holder’s title.
    The honesty of purpose and integrity of action of all men, are to be taken for granted, and are presumed by the law until the contrary is proved.
    ' These principles so reasonable, just, and convenient, are supported by common sense, immemorial usage and almost innumerable authorities, a very few of which are respectfully offered for the consideration of the court. See 1 Greenleaf’s Evidence, 39, sec. 33; 40, sec. 34; 42, sec. 35; 45, sec. 38; 95, sec. 80 ; and the numerous authorities there referred to.
    All those principles and authorities are most palpably disregarded, and set at naught by the charge given by the court below ; and the court in effect, charged the jury that they must presume, without any proof, that the defendant obtained the note improperly, without right, and held it unjustly and in fraud.
    If, as we believe, this charge was manifestly erroneous, then the court should have granted the new trial prayed for, and the refusal to do so was also error.
    We might call the attention of the court to the fact that the record shows no issue for a jury to try. The defendant’s plea was withdrawn by leave of the court, and defendant prayed ■oyer of plaintiff’s letters of administration; this oyer was not given; no issue was made on the plea filed and withdrawn; no judgment by default was taken by plaintiffs; no writ of inquiry of damages was awarded; and so in fact there was neither issue to try, or inquiry to be made by the jury. Yet the jury were sworn to try the issue, and found as upon an issue; all which is certainly erroneous.
    
      W. P. Harris, for defendants in error.
    The facts proved constitute such a prima facie case as would throw upon the defendant the burden of proving how he became possessed of the note. In the ordinary action to recover the value of a chattel, the plain tiff is required to prove first, ownership.; second, conversion by the defendant. In the present instance these facts were proved, or at least there was sufficient evidence to authorize a jury to infer these facts in the absence of any other evidence leading to a different conclusion.
    It is true, as asserted by the counsel of the plaintiff in error, that possession of a promissory note, transferable by delivery, is prima facie evidence of ownership, and without evidence to the contrary, is'sufficient, in an action against a party liable on the note, to entitle him to recover.
    But in a controversy between adverse claimants to property in the note, the same rule of evidence does not apply, and possession in such a case of a note furnishes no stronger evidence of title, than the possession of any other chattel.
    Choses in action by the common law were not assignable as other chattels, the statutes making them assignable have invested them with a character as to their transferable quality, which approaches to the character of an ordinary chattel. If all restraints as to negotiability were taken off; the effect would only be to place them on a footing with other chattels, and the same rules of evidence would apply. If anote is lost or stolen, and the owner find it in the possession of a third party who asserts a title to it, from the very nature of the case it is impossible for him to prove how or when it went out of his possession; all that he can be expected or required to prove, is that the note was his, and that it passed from him by means which he is unable to explain. But the holder of the note can explain how he obtained the note, so as to enable the court or the jury to say whether he obtained it under circumstances which would entitle him to retain it; this is peculiarly within his power and in his power alone; and should a defendant, under such circumstances, be permitted to withhold all explanation, and to defeat the plaintiff’s recovery? The fact that he has it in his power to explain, and will not explain, are circumstances which would authorize a jury to find as they did find in the present case, for the plaintiff. The simple fact that he refused to introduce any evidence to explain his possession, was a circumstance of suspicion, and the jury had a right so to interpret it.
    In the case of Patterson v. Hardacre, 4 Taunton, 114, the court held that where a bill has been lost or stolen, “ the holder who sues must prove that he came to the bill upon good consideration.” It is usual to require notice that such proof will be demanded, but in the case now before the court the very form of the action was notice sufficient.
    It is not necessary in any case, in order to entitle the party to call for proof from the holder, to give any direct evidence of loss; it suffices if such circumstances are shown as satisfy the jury of the fact. Chitty on Bills, 149, 7th edition.
    Yery slight evidence in such case is required as to property in the plaintiff, so that it be such as would enable a jury reasonably to infer property in the plaintiff. 1 Campbell, 551.
    In the case of bank notes circulating as money, the rule, for very obvious reasons, is different, and accordingly in such a cáse the plaintiff would not only have to prove property in himself and conversion by the defendant, but he must also prove circumstances which would show that the defendant obtained the note mala fide or without consideration. Chit, on Bills, 333, 7th edition.
    
      From these principles it is believed that the court below was right in giving the construction and in overruling the motion for a new trialT
    The plaintiffs proved property, the note being payable to their intestate, and proved to have been in his possession; the assertion of ownership by the defendant was tantamount to conversion. There could have been no direct evidence of conversion, &c., from the nature of the case.
    No proof being introduced by the defendant and no explanation by him of the manner in which he came to the note, the jury were clearly justified, under this state of facts, in finding for the plaintiffs.
    The other ground taken by the counsel for the plaintiff in error is equally unavailable. At the first term of the court the defendant put in the general issue ; this, without any further act by the plaintiff, constituted an issue; it was not necessary to add the similiter, and the omission to do so is cured by verdict. The'defendants then withdrew their plea, and craved oyer of the letters of administration; that is, the defendant’s counsel below say so in the writing which they handed to the clerk at the time.
    A plea once filed cannot be withdrawn without leave of the court; the application is addressed to the discretion of the court, and there must be some sufficient reason for granting it. 1 Bibb, 412 ; 2 Ibid. 22. The withdrawal of the plea then is, by the order of the court, obtained on application, and on a proper showing. And it does not appear in this case that such application had been made, or that the court in any way acquiesced in it; on the contrary, the court treated the case as still standing upon issue joined on defendant’s plea filed. The mere statement of the counsel below, as contained in the commencement of their demand of oyer, is not such a withdrawal of the plea as would authorize a judgment for want of a plea. The prayer of oyer, standing alone, without any subsequent step by either party, does not furnish sufficient evidence that oyer was denied; for a party, upon obtaining it, is not required to notice it in his subsequent proceedings, and it often happens that when oyer has been demanded and received, that there is no evidence of the fact found on the record, because the application is made to the opposite attorney, and not to the court. Steph. PI. 68, 70.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This was an action of trover brought by defendants in error against Smith, to recover the value of a promissory note. It is said the judgment is erroneous because there was no issue. That question, however, is immaterial, as the judgment must be reversed for another cause.

The note, it seems, was made payable to Z. E. Pendleton or bearer, and it was proven to have been in his possession some time before his death, but at the time of his death the witnesses did not know in whose possession it was, or who owned it. After the death of Pendleton the note was found in the possession of Smith, who claimed it as his property. The plaintiff’s counsel thereupon moved the court to charge the jury, that if they should find the note sued on to have been once the property of Pendleton, and that there is no proof that he ever parted with it, and moreover, if the defendant has not shown how he came into possession of the note, they should find for the plaintiff, which charge the court gave. This was error. Although the note was made payable to Pendleton, and was proven to have been once his property, yet being made payable to bearer, it was negotiable by delivery. This being the case, the possession of such an instrument is prima facie evidence of ownership; it was therefore incumbent on the plaintiff to rebut the presumption of ownership raised by Smith’s possession. When a holder sues on a note, and his title is properly questioned, he must make out his title; but when the holder is sued for a note payable to bearer, his possession will be a sufficient protection until a better title is shown.

The judgment must be reversed, and the cause remanded.  