-The plaintiff seeks to recover of the defendants upon a town order which she claims came into her hands in the due course of business. It was drawn by the municipal officers ujjon the town treasurer in payment for services rendered by the payee in teaching school.
The defense, as shown by the evidence which is reported and made a part of the case, is that the payee of the order passed it to the district agent receiving the money upon it from him, and that he within a few weeks presented it to the town treasurer for payment who thereupon paid the order.
*487The plaintiff then offered to prove that after the treasurer paid the order he negotiated it in payment of services of the selectmen for the previous year; the court instructed the jury that i f these facts should be proved the plaintiff could not recover; and directed a verdict for the defendants.
The evidence has been reported in order that we may understand its bearing upon the pertinency and propriety o£ the instructions given. These instructions present no valid ground for exceptions.
It is a principle well established that a promissory note, or order, made payable to a particular person, which has been paid by one whose duty it was to make payment, with no right to repayment from another party, is no longer a valid contract. In such case it has lost its vitality and can not again become a valid security. Ballard v. Greenbush, 24 Maine, 336; Mead v. Small, 2 Maine, 207; Bryant v. Ritterbush, 2 N. H. 212; Davis v. Stevens, 10 N. H. 188; Hopkins v. Farwell, 32 N. H. 425; Pray v. Maine, 7 Cush. 253.
The only questions open for consideration in this court are those presented by the bill of exceptions, ( Withee v. Brooks, 65 Maine, 14) and that relates entirely to the instructions given by the court to the jury. The presiding justice stated the issue between the parties to the jury, and the facts offered to be proved. If there was error in such statement, he should have been informed before the jury retired, in order that he might correct any misstatement, — otherwise it will be taken to be correct in matters of fact. Moreover, upon a most careful examination of the evidence we are satisfied of the correctness of the statement of what was offered to be proved. Upon this the instructions of the court were correct, and it was therefore within the province of the presiding justice to direct a verdict for the defendants. It is a rule long settled that where a party, having the burden of proof upon an issue which is necessary to the maintenance of an action, or to the defense of a prima facie case, introduces no evidence which if true, allowing it all its probative force, will authorize the jury to find in his favor, the judge may direct a verdict against him. Heath v. Jaquith, 68 Maine, 433, 436, and cases there cited.
*488The evidence offered to be proved would not have supported a verdict for the plaintiff had it been introduced.
Motion and exceptions overruled.
Peters, C.. J., Daneorth, Libbey, Emery and Haskell, JJ., concurred.