delivered the opinion of the court,
But for a single error this judgment might have been affirmed. The learned judge instructed the jury (see 14th assignment) that “ if you believe the testimony in regard to Gray’s transactions, then the burden of proof is on the bank to show that they did pay the money over to a bona fide holder for value.” This was laying a burden on the bank it was not entitled to bear. The check in question was the bank’s own check, that is, it was issued by the cashier at the request of Mr. Gray, against whose account it was charged. The check was strictly commercial paper, and every holder is presumed to be a holder for value. It was presented at the counter of the bank by and paid to Mr. Howells. Hoes the mere fact that the bank had been informed by Frankish of Gray’s fraud, and of his suspicion that Howells was in collusion with him, accompanied with a request not to pay the money to Howells, change the burden of proof? It is conceded that if Howells was a bona fide holder the payment was good. Against the legal commercial presumption of his bona fides there was nothing but the suspicion of Frankish that he was in collusion with Gray. In addition to the legal presumption referred to there'was the affidavit of Howells that he received said check for value. If, as was asserted, it was taken merely as collateral for a pre-existing debt, the authorities are clear that he would not be a holder for value. But if taken in payment, or for a new consideration, the case might be different. This, however, will be a question for consideration upon a new trial in the court below. For the present it is sufficient to say there was not enough in the case to throw upon the bank the burden of showing the.bona fides of Howells’s holding. It had a right to rely upon the presumption in his favor. The burden of showing that Howells was not a bona fide holder rests upon those who assert it.
Judgment reversed and a venire facias de novo awarded.