
    Lloyd M. Lowe v. James McClery.
    A check drawn by the defendant in favor of the plaintiff, or bearer, with the bank’s cancelling mark upon it, and produced by the defendant, is not evidence of money paid to the plaintiff, although it appear hy the plaintiff’s evidence, that when payment was demanded, the defendant said he had paid it by such a check, and although he produces his own check-hook, with a memorandum corresponding with the check, with the additional words “ for rent.”
    Assumpsit for use and occupation.
    Upon the trial, it appeared by the plaintiff’s examination of his -witness, that when demand of the rent was made, the defendant said he had paid it by a check on the Office of Discount and Deposit, on the 9th of August.
    
      Mr. Key, for the defendant,
    offered in evidence such a check on the Office of Discount and Deposit, with the bank’s cancelling, mark upon it, payable to the plaintiff or bearer, and the defendant’s own check-book, with a margin corresponding with the check in amount, name, and date, and the words “ on account of rent.”
    
      Mr. Key contended that the circumstance that the plaintiff’s witness had testified that the defendant said he had paid the rent by such a cheek would justify the admission of the check in evidence.
   But the Couet (Morsell, J. contra;,) refused to admit the check in evidence. . ■

Morsell, J.

was of opinion, that it might be given in evidence to corroborate the defendant’s declaration, and to rebut the presumption which might arise from the defendants not producing the check.

Verdict for plaintiff $57.15. Motion for new trial overruled.  