Tbis case presents a question of fact only, wbicb is, wbetber tbe $50 specified in tbe receipt by Jackson & Halsey was applied, as testified by tbe plaintiff, or wbetber it was not so applied, and wbetber tbe defendant is consequently entitled to a credit for tbat amount in satisfaction of tbe note. Tbe plaintiff testifies positively tbat tbe sum mentioned in tbe receipt was applied — $20 of it to tbe payment of interest on tbe two notes subsequently transferred to Luscber for Eilert, and indorsed on those notes, and the other $80 to tbe payment of so much of tbe principal of tbe note in suit, and wbicb is included in and constitutes part of tbe $50 indorsed under date of April 17tb, 1869. Sbe gives tbe particulars of tbe transactions, and states wben, where and bow tbe other $20, to make up tbe $50 indorsement, were paid, and also tbe $10 indorsed for interest. Her statements are corroborated by several facts and circumstances. Tbe possession of tbe uncancelled security is a strong circumstance in her favor. Brembridge v. Osborne, 1 Starkie, 374 [2 E. C. L., 433]. And especially is it so here, where it appears tbat tbe $50 indorsement, as well as tbe $10 indorsement for interest, is in tbe band-writing of tbe defendant, who, if bis position is correct, was at tbat time entitled to tbe possession of tbe note, because tbe same bad been fully paid. Tbe circumstance of tbe note being thus left uncancelled in tbe possession of tbe plaintiff, ■or of her mother who then held it, when,- as claimed by tbe .defendant, it was in fact paid, is by no means satisfactorily ■explained. Tbe receipt, too, was for “$50, same to apply as ¿principal and interest on notes I bold against him.” Tbis cor*323roborates tbe plaintiff, by showing that the payment was to be distributed or applied to more than one note, as she testifies it in fact was.
She is directly sustained, also, by the testimony of Mr. Halsey as to the conversation between himself and the defendant at Luscher’s office, when defendant said he wanted to take up the note soon, implying that it was still in part unpaid, and at the same time said nothing about having the receipt for $50 against or to be applied upon it.
But the circumstance which most strongly impresses our minds, and which we think decisive, is, that the defendant himself does not testify to any distinct or separate payment of the $50 indorsed, either on the day of indorsement or at any other time. "When pressed upon that point he evades, and answers that he thinks the $50 was paid because he finds it indorsed, and because he would not have indorsed it unless it was paid. He says: “ I have no means of knowing, only as the indorse-ments were made. I never kept a cash account, but paid the money as indorsed. I have no means of knowing, only as the indorsements were made.” He does not anywhere testify to the payment of the $50 indorsed, aside from the money specified in the receipt. He does not come to the point of a direct or positive denial of the facts sworn to by the plaintiff. The contradiction by his testimony is inferential merely, and of the weakest possible kind. It adds little or nothing to the evidence afforded by the receipt, which of itself does not prove a- pay: ment upon the note.
We are compelled to differ, therefore, from the learned judge of the circuit court, in our conclusion with respect to the pay-; ment of the fifty dollars claimed to have been made by the defendant, but which was denied by the plaintiff, and to hold, as" we think the evidence clearly preponderates, that such payment was not proved.
The judgment appealed from must be reversed, and the cause remanded with directions to enter judgment in favor of the *324plaintiff for tbe amount appearing to be ber due, according to tbe facts as found by tbis court.
By Hhe Court.— It is so ordered.