I concur in the conclusions expressed in the opinion of my brother Dargan, and beg leave to subjoin a remark or two. It cannot be inferred from the declaration of Henderson at the time the notes were delivered to him, that he intended to transfer them, and that the makers might consider them as already transferred, that he did in fact dispose of his, right to them. An expressed intention to *270do an act, in the absence of all evidence that it was done, certainly does not prove that the purpose of the declarant was consummated. He may have taken, advantage of the locus pceniteniice, as it was allowable to do; and it is too much for any tribunal, where the inquiry becomes material, to assume that he did not.
It is explicitly stated that the two notes which first matured, were payable to the order of Henderson, and were produced by the defendant as evidence of their having been paid. Upon this statement, it cannot be inferred that the notes were indorsed or otherwise transferred by the payee. If they had not been indorsed, the intendment would be that they were paid to Henderson, in the absence of all proof on the point.
Uninfluenced by our statute, it may perhaps be conceded that a check or note payable to a certain person eo nomine or bearer, is not evidence per se of payment to the person whose name is inserted; because such a paper on its face would be payable to any person who might become its proprietor. If the note in question was ordered to be paid to some third person, either by a written or verbal transfer, or was in fact paid to some one else than the payee, it should have been proved. 7 Sergt. & R. Rep. 124 to 126.
Although, it is generally most proper to instruct the jury hypothetically upon the facts, I cannot think the evidence was so contradictory as to make the sweeping charge that was given erroneous. If the evidence had been demurred to by the plaintiff, it could not have been presumed in the absence of, if not against proof, that the notes which the defendants paid, had been transferred by the payee. Whether this was deemed an important inquiry in the primary court in the present posture of the case, can have no influence in determining what judgment we should pronounce. We must look at the record as it is presented to us, and from the disclosures there made, we must form an opinion whether the ruling of the circuit court should be supported.
Considering the agreement in' respect to what has been *271called the “ Physic debt,” however the law may be on a demurrer to evidence, I think a jury might very well infer that it had been deducted against one of the notes maturing about the time that Nelson paid it.
If what I have said be maintainable, the cases cited in the opinion of the court from 12th Wendell and 6th Dana are directly in point. I may add, that these cases rest upon a principle which has been too often recognized to be successfully combatted. See also Taylor’s adm’rs, et al. v. Spindle, 2 Grattan’s Rep. 44.