¶1The opinion of the Gourt was delivered by . •
¶2— 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.
¶3Interest of the whole, ; 7 00 0
¶438 12 4
¶5(signed) Peter Weidner.
¶6April 6th, 1814.
¶7Indorsed 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 *388note 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.
¶8Judgment affirmed.