
    [Lancaster,
    May 19, 1823.]
    WEIDNER against SCHWEIGART.
    IN ERROR:
    The possession by the defendant of an order on him, signed by the plaintiff, to pay money to a third person, whose receipt is endorsed but not proved, if not objected to' as evidence to go to the jury, may be charged by the court to be evidence of payment, though not-conclusive.
    Error to the Court of Common Pleas of Lancaster county.
    Assumpsit in the court below by John Wieidner, the plaintiff, against John Schnieigart. On the trial, the plaintiff proved a settlement between the defendant and himself in April, 1813, in which the defendant acknowledged himself indebted to the plaintiff in the sum of 131 pounds, 12 shillings, and 4 pence. The defendant alleged payment since that time, and gave in evidence, two orders in his possession, drawn on him by the plaintiff: The first dated the 9th March, 1814, in favour of John Carkey, for 100 pounds, with a receipt indorsed, .dated the 16th March, 1814, and signed by John Carkey. The other dated the 6th Jlpril, 1814, with a receipt indorsed as follows:
    ■ Mr. John Schweigart, please to send by the bearer the remainder of the money due me: — £ 31 12 4 ‘
    ■ Interest of the whole, 7 00 0
    38 12 4
    
      April 6th, 1814.
    
      Peter Weidner.
    
    Indorsed — Received, April, 1814, from John Schweigart, the sum of 38 pounds, 12 shillings, and 4 pence; being in full satisfaction of the within order:
    
      £ 38, 12 4. his
    
      , ■ Samuel- [|- Eidel.
    
    • mark.
    The drawing of the said orders was admitted by the plaintiff, and also that John Carkey signed the receipt indorsed on the first order, and paid him the 100 pounds. No other evidence was given, and the defendant requested the court to charge the jury, that the possession by the defendant of the order of the 6th April, 1814, was prima facie evidence-of the payment of the same; and, in this case, has become conclusive, no evidence being given to the contrary. The president in the court below charged in the following terms: “ The court cannot go so far as to say that it is conclusive, but we think it is evidence to go to the jury, upon which they will judge, whether, connected with the other circumstances of' the case, it is sufficient to authorise a presumption of payment. But it appears to ’me, that the indorsement of a receipt which has not been proved, goes a great way towards-removing the presumption which might otherwise arise. If you think there is sufficient evidence of the payment of the' money, you will find for the defendant; otherwise* you will find for the plaintiff for the balance with interest.”
    The-defendant excepted to this .charge: as did also the plaintiff, “ so far as related to the point, upon which the defendant requested the charge of the court” The jury found a verdict for the defendant.
    
      Hopkins, for the plaintiff in error,
    now’ contended, that the court erred in saying that the order of the 6th April, 1814, was evidence to go to the jury, because, per se, it was no evidence whatever of payment. It was not a negotiable order,., nor did it vest any property in the bearer. The best evidence which the nature -of the case admitted, was the oath1 of Eidel, who it is alleged, received, the money: or, at least, there should have been proof .of his handwriting. Without these, the order was mere waste paper, and improper for the consideration of the jury: yet, from.the manner in which the court charged, the indorsement went to the jury as evidence, without any proof. The court also erred in leaving it to the jury to say, what was the legal effect of this paper’s being found in the defendant’s possession, and whether it was proof of payment..
    
      Buchanan, contra
    
    The paper was given in evidence without objection: the defendant admitted that he drew the order: and it is too late now- to contend that it was no evidence at all of payment. The bearer was the agent of the plaintiff, and the order’s being drawn by the defendant, and being in the defendant’s possession, were certainly some evidence of payment. No prudent man would give up such an order without payment. It is not pretended that the order was negotiable to all intents and purposes, but it was so to a certain degree. The defendant would have been justified in paying to any bearer, without further inquiry. Banks never take a receipt for payment of a check payable to bearer. It is sufficient for' us, that possession was prima facie evidence of payment. In Crager v. Armstrong, 3 Johns. Cas. 5, it was held, that the holder of a check is prima facie to be deemed the rightful owner of it, and he need not prove a consideration, except where circumstances of suspicion appear. Possession of an order to pay money is prima facie evidence of payment, though it ^otherwise of an order to deliver goods. Taylor's N. Car. Rep. 40. Being, then, prima facie evidence, it was incumbent on the defendant to call jRidel to rebut it. At all events, the objection should have been taken before the paper was read in evidence.
    Hopkins, in reply.
    A bank check is quite different from the present order. That vests a property in the check. This order is, to send the money by the bearer and vests no property. We did not object to the reading of the order in evidence, because it was the writing of thé plaintiff, and we expected it would be followed up by an attempt to prove the receipt, which we were prepared to contradict. The defendant cannot now separate the order from the.receipt: they all form one transaction, and one item of evidence. The court look the receipt into view in their charge, and thus the jury considered the receipt as evidence. In the conclusion of their charge, the court left it to the jury whether there was sufficient evidence of payment. This was matter of law.
   The opinion of the Gourt was delivered by . •

Tilghman, C. J.

— On the trial of this cause, the plaintiff proved that the defendant was indebted to him; and the defendant, in order to satisfy the jury that he had paid the debt, gave in evidence a note or order by the plaintiff, directed-to him, in 1he words following: Mr. John Schweigart, please to send by the bearer, the remainder of the money due me, ¿S31 12s. 4d.

Interest of the whole, ; 7 00 0

38 12 4

(signed) Peter Weidner.

April 6th, 1814.

Indorsed on this note, was a receipt,- signed by Samuel Eidel, for £ 38 125. 4d. in full satisfaction of the within order; but no evidence was given of the signature of Éidel, or of the payment of the money to him, nor was the indorsement read in evidence to •the jury. The'counsel for the defendant prayed the court to charge the jurjr, that the possession of this note was prima facie evidence of" payment; and not having been contradicted, this evidence becomes conclusive. The court charged, that the possession of the note was evidence of payment, but not conclusive; and that the presumption of payment arising from the possession, was in a great degree destroyed by the indorsement of a receipt which had not been proved. The jury found for the defendant, and the plaintiff now alleges for error, that they were improperly instructed by the court, that the note produced by the defendant was some evidence of payment. It is too late now, to say that the note was no evidence of payment. If it was no evidence, the defendant ought to have objected to its being given in evidence. And, considering that it had been given in evidence without objection, the charge of the court was very favourable to the defendant. Indeed the judge remarked on the indorsement, as a circumstance operating strongly against the defendant; although it had not been given in evidence. The defendant’s counsel thought his cause injured by this remark, and excepted to the charge on that account. But the verdict being contrary to expectation, the defendant is now satisfied, and the plaintiff complains. If the plaintiff’s counsel had objected to the note’s being given in evidence, until proof was made, of the indorsed receipt, perhaps' he would have been right. But having suffered it to be read to the jury, the least that the court could say, was, that it was some evidence of payment. I am of opinion, therefore, that the judgment should be affirmed.

Judgment affirmed.  