62 Pa. 88 | Pa. | 1869
The opinion of the court was delivered,
The 2d and 3d assignments of error having been withdrawn from our consideration by the counsel for the plaintiff in the argument at the bar, all the questions arising on this record are resolvable into one, namely, whether any evidence was given on the trial in the court below to charge the defendants, the Gettysburg National Bank, with the receipt of money for the use of the plaintiff, John Kuhns.
It was in proof that a check or draft was drawn by Colonel Lawler, as paymaster of the United States, in favor of the bank by the order of Kuhns and for his use. It was not, however, transmitted by Colonel Lawler to the bank for Kuhns, but to Captain Norris. Though Captain Norris was examined as a witness, there was no testimony by him, either denying the receipt or explaining what he had done with it, if he did receive it. It was insisted that the bank should be held liable merely on-the evidence that the cheek was drawn in favor of their cashier and the money received by him. So the learned judge below held, and instructed the jury accordingly in his answers to the several points presented by the plaintiff and the defendants. In this we think there was error.
It is well settled that a check of itself is not evidence of a debt, or loan of money. The presumption is that it was taken either in payment of a debt or that cash was given for it at the time it was received: Aubert v. Walsh, 4 Taunt. 293; Patton v. Ash, 7 S. & R. 125; Flemming’s Exrs. v. McClain, 1 Harris 177; Lancaster Bank v. Woodward, 6 Id. 357. Proof of the payment of a' check to the payee or holder, raises no presumption that the money so paid was an advance by the drawer or received to his use. In Geatorex’s Exrs. v. Gerrish, 4 Esp. 9, where a draft was given by a testator on his bankers payable to the defendant, and it was proved by the bankers that the money was paid to the defendant out of the money of the testator then in their hands,-it
Judgment reversed, and venire facias de novo awarded.