Page:United States Reports, Volume 2.djvu/151

 Stnuua Coun or Pmnyylwniu. t45 univerfal lilence on the fubjeét, ilrengthens the principle that l792. arifes from the fpirit of commercial negociation, and public con- VV`! venience. The defendant’s contrafl: is to pay the amount of the bill to the pxge, or ancy fubfequent indorfee. There is internal · evidence in bill itf f, that it had allcd into the hands of the different indorfees ;and, therefore, the plaintiffs recovering the polfellion, affords a llrong prefumption of their having paid a va- luable conlideration for it 3 and fraud ought not to be inferred. The original parties to a bill are the drawer and payee ; but an in- dorfor engagesin the tranfaétion, perhaps, without their know- ledge or confent; and, confequently, lefs evidence ihould be required from the payee, than from the ind0rf¤r._ But the pol`- fellionof the billandprotell: is evidence of an authority to demand its contents. : Dnlh Rep. rpg : It is prima facie evi- dence of property ;_and, as Inch, mult be cortclulive until itia contradicted. g Burr. 2688. . · For the Dgiudant, it was anfwered, that in this aétion the declaration mull: {tate, that the plaintiffs had paid the indorfee, nor would the omillion to do fo, be cured by a  Doug. 6ry. If it is material to alledge the fad}, it mult be material toproveit ; and the general rule is, that the party mulls pro- duce the bell; evidence in his power. The polfcilion of the bill and protell: is merely prefumptive ; and, from the very nature of the tranfaftion, better proof mullbe in the power of the · party. Eventhe acknowledgement of the obligor will not be received to prove his own bond ; the attelling witneiies mulls be - examined. In Ld. Rqym. 742 the cafe occurred; and it was there decided, that poifeilion of the bill and protell was not fullicient, without producing areceipt from the fubfequent in- dorfee ; and this rule not onl remains uncontradifted, but is recognized, in Lowlnp r 77, where the author defcribes the proof to be given in an aétion like the prefent. With refpe& to the argument ariling from the place where the bill was drawn, it is enoughto obferve, that though the lex loci may regulate the nature of the coutrait, it cannot pteferibe the nature of the evi- dence to be produced in our Courts in fupport of it. _ The judges now {fan. 1792} delivered their opinions frri-. _ atim as follows: ` Btunronn, jqlice. This is an a&ion brought againll the. acceptor of a hill of exchange, which had been feveral times fpecially indorfed, and the plaintiffs are the lirii of thofe indor- fors. At the trial the plaintiffs gave no direft proof of pay- ment to the lall: indorfee, inliiting that poifeilion of the bill and gaotell was fuliicient, or at leait prima facie evidence of it. hethcr it be fo, or not, is thc point in queition. ` It feems to be fully listtled in Dsaib ·ve¢u Serwmerr (n) , T that (a) Luclu 888.

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