Action upon Note against Administrator of Deceased Maker — Possession without Indorsements—Presumption of Non-payment—Prima Facie Case.—In an action upon a promissory note against the administrator of a deceased maker, the possession of the note by the plaintiff, without any indorsements of payment thereon, raises a presumption of its non-payment' and the production of such note in evidence makes a prima fade case for the plaintiff.

Id.—Burden of Proof of Payment.—The burden of proving the payment of such promissory note rests upon the defendant; and the administrator must introduce evidence which warrants the conclusion not only of the mere delivery of money to the payee of the note by the decedent, but the conclusion of the delivery of money on account of the particular obligation of the note in suit.

Id.—Evidence of Payments in Excess of Note—Counterclaim—Presumption of Other Money Due—Conclusiveness upon Jury.— Where a banker for both parties testified to payments made by the deceased to plaintiff in excess of the amount due on the note in the sum of eighteen hundred dollars, and the lips of deceased and of the plaintiff are both sealed from testifying, and a counterclaim was interposed in favor of the estate in that sum, it must be presumed, under subdivision 7 of section 1963 of the Code of Civil Procedure, that the money covered by the counterclaim was due from the deceased to plaintiff, upon some other obligation, and where there is no evidence to contradict this presumption, the jury were bound to find according to such presumption, under section 1961 of the Code of Civil Procedure.

Id.—Payment of Note—Presumptions—Sufficiency of Evidence-Questions of Fact for Jury.—In view of the presumptions arising from the possession of the note without indorsement, and that, if it had been paid, the ordinary course of business would have been followed for its surrender to the maker, it is held that notwithstanding evidence of payments more than sufficient to extinguish the note, the question of its non-payment was a question of fact for the jury, and it cannot be held, as matter of law, that any portion of the amount evidenced by the note was in fact paid by the debtor.

Id.—Bule as to Payments upon Different Obligations—Presumption of Non-payment of Note not Overcome.—If two or more obligations are shown, and one of them is a note held by the payee, bearing no indorsement of payment, and there is nothing but the mere payment of money which could have been applied upon either obligation, there would be nothing to overcome the presumption of non-payment of the note. The payer would not have satisfied the requirement of furnishing evidence warranting the inference that the payment was on account of the note, rather than on account of the other obligation or obligations.

Id.—Bulb as to Single Obligation—Presumption of Payment.—If, on the other hand, it should be made affirmatively to appear that there was but one obligation or transaction, and a payment of money by the debtor to the creditor is shown, it would follow, by reason of the presumption that money paid was due to the payee, that the money was paid on account of that obligation.

Id.—Absence of Evidence as to Plurality of Obligations—Excessive Payments—Burden of Proof.—Where there is an absence of evidence of a plurality of obligations, other than may arise from excessive payments, the defendant upon whom the burden of proof of payment rests, must introduce evidence tending to show that the money paid was on account of the particular debt in suit, rather than upon some other debt or transaction not involved in the action, sufficient to warrant such an inference.

Id.—Proof Warranting Inference—Question of Pact for Jury— Law of Case Limited to Admissibility.—If proof is introduced warranting such inference, the question of payment is one of fact for the jury. Such proof is admissible as the law of the case upon the former appeal (Light v. Stevens, 8 Cal. App. 74) but the law of the ease extends no farther; and the admitted evidence is for the consideration of the jury.

Id.—Evidence Tending to Show Part Payment—Prejudicial Instruction.—Where there was evidence from which the jury might have found that two of the payments testified to were made upon the notes, without regard to what they may be bound to find, if acting upon their own judgment, it was prejudicial error for the court to instruct them that if they found for the plaintiff at all, they must return a verdict for the full face value of the note, with interest from ids date.

Id.—Specifications of Error in Instructions—General Specification in Statement—Sufficiency.—Where the statement on motion for a new trial contains an attempted specification of the particular errors relied upon, but in regard to the instruction in question given at plaintiff’s request, the specification is general that “the court erred in giving each and every instruction requested by plaintiff,” it is held that though such general specification is not to be commended, it sufficiently notified plaintiff of the errors relied upon, as much so as if the statement had set forth in detail each and all of such instructions, and that under the circumstances it should be deemed sufficient.