There is no doubt that the judge was correct in holding that the burden of proof was upon the defendant.
But we are of opinion that the judge erred in admitting parol evidence that a receipt was given by Randall to the claimant, without its production, especially when called for; and in directing the jury, that the presumption would be, in the absence of the receipt itself, that it was in common form. That receipt was given to the claimant himself; in theory of law, it was in his actual possession at the time. It was of vital importance to show the amount placed in the hands of Randall, the purpose for which it was so placed, and all other particulars of his dealing with Randall on that occasion. It constituted his very title deed to the money in controversy. For aught that appears in the evidence, it might have been money paid or lent to Randall, to be accounted for on demand or otherwise, or to be laid out at his discretion, or to be deposited in the bank, in his own name, either of which would make it Randall’s money. It is a safe rule to hold, that if a party has material evidence in the case, in his own power, and wilfully withholds it, the strongest presumption may be made against him. The reason is, that he has only to produce the evidence, and show the truth, and rebut such presumption, if erroneous. We know of no *611ground upon which a jury can presume, in the absence of proof, that a receipt is in common form, and what such common form is.
Upon the other part of the case, whether, if the property had remained in the bank under the first deposit, the claimant, on proving that the bills were his property, that they were placed in the hands of Randall, to be deposited in his name and for his use, and that, through mistake or abuse of his trust, Randall had deposited it in his own name, could have asserted a legal right to reclaim it, as against the bank, and holders of checks or attaching creditors, is a question of difficulty, and though somewhat discussed, a question on which we give no opinion. But after the money had been deposited in the name of Randall, and a large amount drawn out and paid to Randall on his own check, and Randall, in the afternoon, had made another deposit, of other bills, or bills not shown to be the same, and the claimant had given no notice then, or for a long time after, it was not competent for the claimant to assert title to this last deposit. In general, the title to money, and of course to bank notes taken and passed as current money, passes with the delivery, and he, who has possession, has prima facie evidence of property, and may give a good title to another by delivery. And it is highly important in the transaction of business, especially pecuniary dealings with banks, that it should be so. There may be some exceptions, but they are very limited.
In regard to the condition of Randall’s mind, we do not think the finding of the jury, that he was not of capacity to make a contract, can affect the claims of these parties. The claimant dealt with him in the way of contract, took his receipt for the money upon some terms not proved, and put it in the power of Randall to deal and act with the money as if it was his own.
The judge having charged the jury, that the claimant might recover the amount of such after deposit, if they believed it to be the proceeds of the first bills deposited, the court are of opinion that this direction was not correct; and for this reason, and for the admission of parol proof of the receipt, and authorizing the jury to presume its contents, the verdict must be sel aside and a New trial ordered in this court.
Thomas, J. did not sit in this case.