#### KLINE *v.*PRINDLE.

Endorsement — prima facie cash — proof against presumption.

An endorsement on a note for one hundred and thirty dollars, is prima facie for a payment in cash, and if it be for any thing else, the party claiming against the prima facie case is bound to prove it.

Without proof of actual state of fact, different from the prima facie one, that must govern the case*

Assumpsit. On trial, it appeared in evidence, that the parties had purchased a drove of horses together, and started with them to an *415eastern market. Before they reached Pittsburgh, on the 19th of May, Kline sold his interest in the drove to Prindle, and took his due bill for four hundred and fifty dollars, which is the foundation of this suit. Kline continued with, the drove as an assistant,until they reached Allentown in Pennsylvania, seventy or eighty miles east of Harrisburgh. Sales were made along the road, partly on credit, and amongst others, forty dollars were left due at Greensburgh, and one hundred and thirty at Lebanon. On the 14th June, the parties separated at Allentown, and Kline left that morning in the stage for Ohio. He stopped at Lebanon and collected the one hundred and thirty dollars, on an order from Prindle; was at Harrisburgh on the 16th; at Greensburgh on the 18th, where he collected the forty dollars;' and home in Ohio in June. There is endorsed on the note, as of the 14th June, $130, in the handwriting of Prindle; $10, on the 15th June; $70 and$10,on the 18th; and $40 and $60 without date; in all, $320; leaving a balance of just $130, apparently due. All the endorsements but the first, were in Kline’s handwriting. The $130 at Lebanon, and the $40, were received on *orders*from Prindle, though Kline had called, under some pretext, and taken up the order for the $130, several months after the payment, and gave his receipt for it. The real question was, whether on this evidence, the $130 endorsed by Prindle, was for the order on Lebanon, or for cash.

*Russell*and Knight, for the plaintiff.

*G. Tod,,*contra.

Wright, J.

to the jury. The defendant claims credit for the money received by Kline on his order at Lebanon, and if he is entitled to that credit, your verdict should be for him; if not, against him for that sum with interest. The plaintiff urges to you, that it is incumbent on the defendant to show that the $130 endorsed, was for so much cash. We think he is in error in this; the endorsement is *apparently*for cash, and if not so in fact, it is for the plaintiff to show the fact; the legal presumption is against him. It is insisted that the evidence proves, that the $130 was for the order on Lebanon. The defendant insists, that the proof is, that the sale and due bill were for cash, to be paid out of the sales, and when they separated, he gave $130 in cash, and orders for money to be collected by Kline, on his return home, for the balance. He claims, that if the parties intended to endorse the orders as cash, they would have so endorsed the whole; but as it was, they endorsed the cash, and left Kline to endorse the other as he received it. That in fact, the *416$130 was endorsed at Allentown, and $130 afterwards paid at Lebanon. You must look to the whole evidence, and determine the matter.

Verdict and judgment for defendant.