A check drawn upon a Bank, is an order to pay the money recited in it, to the payee, or bearer. The check itself, is a mere assertion of the drawer of his right to draw, but if the money is paid pursuant to the directions of the drawer, it is prima facie, an admission by the Bank, that the money drawn for, was in Bank to the credit of the drawer. The same effect must result, from the admission made in writing upon the check, by the proper officer of the Bank, “ that it was good,” which, in mercantile phrase, is synonymous with a declaration, that it will be. paid on presentment to bearer.
This presumption might be repelled, in either case: as for example — by showing that the payment, or admission, was made by mistake, and it is now insisted, that we must assume, that the other evidence spoken of in the bill of exceptions, was sufficient to destroy.this presumption. Such may have been the fact, but if so, the Court could not pass upon the testimony, and determine the effect. Whether the other testimony in the cause, did, or did not, destroy the presumption arising from the admission of the Bank, was peculiarly the province of the jury to decide.
The question made upon the statute of limitations, was eoiv rectly decided by the Court. The statute of limitations of six years applied, unless this was an “open account.” That it was not an open account, so far as it is disclosed upon this record, is shown by the case of Sheppard v. Wilkins, 1 Ala. Rep. 62, and especially by the case of Caruthers & Kinkle v. Mardis’ admr’s., 3 Ala. Rep. 599.
For the error of the Court in the first charge to the jury, the judgment must be reversed, and the cause remanded.