The opinion of .the court was delivered, October 30th 1871, by
Williams, J.
Under the defence set up in this case, the bur-then of showing that the note in suit was given in renewal of a previous note for the same amount, on which the maker had paid three hundred dollars, was on the defendants. If the bank authorized the maker 'to send the money by mail at its risk, then proof that it was enclosed in a letter properly directed and put into the post-office would be primfi facie, and, if not rebutted, sufficient evidence of payment. But if the bank did not request or authorize it to be sent by post, then the maker, in sending it by mail, took upon himself the risk of its loss by the way, and if it was not received by the bank, its deposit in the post-office was no payment. We have not been furnished with a. copy of the cashier’s letter of the 4th of April 1868, authorizing a renewal of the note for the residue on payment of a part thereof, but from the answers of the court to the plaintiff’s second and third points, we are perhaps bound to presume that it did not authorize the maker to remit the money by mail at the risk of the bank. If so, was proof that the money was enclosed by the postmaster at Milroy in an envelope directed to the cashier of the bank at Bellefonte, and then enclosed in a registered envelope directed to the postmaster of Bellefonte,' and deposited in the mail-bag for that place, sufficient evidence to justify the jury in finding that the bank had received it ? There is no presumption of law that a letter, mailed *160to one at the place he usually receives his letters, was received by him. A strong probability of its receipt may arise, as was said in Tanner v. Hughes, 8 P. F. Smith 289, and the fact of its deposit in the mail-hag in connection with other circumstances may be sufficient to warrant the court in referring the question of its receipt to the determination of the jury. The only other possible circumstance in this case tending to show that the bank received the money, is the fact that the cashier, who was examined as a witness on behalf of the hank, was not asked whether he had received it or not. But if the evidence given by the defendants did not make out a primá facie case of payment, the plaintiff was not bound to prove a negative. If the letter enclosing the money had been mailed directly to the cashier, the jury might possibly have been warranted in finding that it was received by the bank. But it was not mailed directly to the cashier, but to the postmaster at Bellefonte, and it could not have been received by the bank, except at the hands of the postmaster or one of his deputies ; and, under the regulations of the post-office department, it would not have been received by the bank without the receipt of the cashier in a book provided by the department, and kept by the postmaster for that purpose. If then the bank received the money, the defendants had it in their power to show its receipt not only by the postmaster at Bellefonte, but by the production of the cashier’s receipt: and they were bound to give the best evidence in their power, and not leave to conjecture a fact which, if true, was susceptible of direct and positive proof. Under the circumstances, it is clear that the evidence of the bank’s receipt of the money was not sufficient to justify the court in submitting the question to the jury. The maker of the note virtually constituted the postmaster at Milroy and the postmaster at Bellefonte his agents for the transmission of the money, and he was bound to call and examine the latter before he had the right to ask the jury to find that the hank had received it. As it was, the jury were left to infer from the deposit of the registered letter at Milroy, in the mail-bag for Bellefonte, its receipt by the postmaster of that place, and his delivery of the letter enclosed in the registered envelope to the cashier of the bank to whom it was addressed. They were allowed to make this double inference, and to find that the bank had received the money not only without any direct proof of the fact, when tHe means of positive proof were in the defendant’s power, but in the face of the fact that the maker had subsequently given, and the defendants had endorsed two notes of the same amount in renewal of the note on which the money sent by mail was to be applied. The giving of the renewed notes was tantamount to an admission that the money had not been received by the bank, and there was no evidence tending to rebut the admission. The court was therefore in error in submitting the *161question of its receipt to the determination of the jury. The evidence embraced in the first offer-was properly received. It was a link in the chain of evidence showing payment. But Alexander’s letter to the cashier of the 9th of July 1868, referred to in the second assignment, was improperly rejected. It ought to have been received in connection with the testimony of the cashier as a part of the res gestee, and to show that the note in suit was not the first renewal of the note which fell due on the 9th of April Í868, as testified to by Mr. Alexander on his cross-examination. The learned judge seems to have misapprehended the purpose of the offer. It was not offered for the purpose of showing that Alexander gave the note of the 9th of July, but to show that the note which fell due on the 9th of April was renewed by another note of that date, in renewal of which the note of the 9th of July was given.
What we have said disposes of all the assignments except the fifth, in which we discover no error; but for the errors' in rejecting the letter of the 9th of July 1868, and in submitting the question of the bank’s receipt of the money remitted by mail to the cashier, the judgment must be reversed.
Judgment reversed, and a venire facias de novo awarded.