delivered the opinion of the court.

This was an action of trover brought by defendants in error against Smith, to recover the value of a promissory note. It is said the judgment is erroneous because there was no issue. That question, however, is immaterial, as the judgment must be reversed for another cause.

The note, it seems, was made payable to Z. E. Pendleton or bearer, and it was proven to have been in his possession some time before his death, but at the time of his death the witnesses did not know in whose possession it was, or who owned it. After the death of Pendleton the note was found in the possession of Smith, who claimed it as his property. The plaintiff’s counsel thereupon moved the court to charge the jury, that if they should find the note sued on to have been once the property of Pendleton, and that there is no proof that he ever parted with it, and moreover, if the defendant has not shown how he came into possession of the note, they should find for the plaintiff, which charge the court gave. This was error. Although the note was made payable to Pendleton, and was proven to have been once his property, yet being made payable to bearer, it was negotiable by delivery. This being the case, the possession of such an instrument is prima facie evidence of ownership; it was therefore incumbent on the plaintiff to rebut the presumption of ownership raised by Smith’s possession. When a holder sues on a note, and his title is properly questioned, he must make out his title; but when the holder is sued for a note payable to bearer, his possession will be a sufficient protection until a better title is shown.

The judgment must be reversed, and the cause remanded.