Page:United States Reports, Volume 2.djvu/152

 ' M6 Casus ruled and adiudged in the ryga. that by ph fpecial liudonrgesulfesfa of a iggof exchange, the indorfor q;4`.• artswi bisri ta ' a torastoany · [ I ifpg up gig bill, alrzl making pagneut tothe! lait indorfee. The med`rinei• ' _in rruuuian ',reportedi¤ Cartlvew rgo, and afterwarrlsonerror inI.•¢¢·b. 896. where it` is held, ·* rhatif the billhaa been fpecially indorfed by the •• plaintiff he cannotrezover, unlefsat thetrial there be evi- ¤ dence pa ment tot e lalt ' ee." This ymeint, therefore, is a material part of the plaintil? cafe. 'Eey (tate it as fuch in their declaration ; and righgy; for, it is clear, from the cafe of Bmnrrti and Lewin, that ' it were not ltatedk tgp omiigidon yould be fatal.{¤j Being ama- terial faét it mu ov . ‘ The plaintiliis do nig appear to deny this; but  contend, that poifellion of the bill rspnmafm: evidence of property in R. This is the cafe with bills payable tobearer, and fometimes when the bill is payable to order. But, among bills pacylable to or- der, there is a familiar diitinétion between thofe whi are {peei- ally indorfed, and thofe which are indorfed in blank. Polfeilion of the latter is evidence of title; and Ld. Mansfield affigns the ‘ reafon in Pmmck v:r_/iu Rhodes, Doug!. 6r r. “ Bills inddrfed in •* blank, fays he, are conlidered as bills payable to bearer: . “ Both pafs by delivery: And poifellinn proves property in both _ “ cafes.” But bills pecially indorfed do not pafs by delivery; and, therefore, poifellion does not prove property in them. The Init indorfee may transfer his right either by indorfement, or by accepting payment from the imiorfor. lf the iirib had _ · been the cafe, and the prefent plaintiff?. had claimed as his imlor- ,6;:, it is clear, they mult have proved his hand writing. Pof-‘ fcllion would havebeen no evidence of zlvztz Why then ihould it be evidence of payment P The one is at material as the_o· the_r·, and it is as eafy to prove a receipt, as to prove an indorlb- mcnt. . But the cafe of Jllerubz wrjiu Carrrrmz, (5] if it be law, goes the whole length of determining this queltion. It was doubted at the bar; but I agree with the rcil: of the Court, that there is no ground to fu p¢€f its authority. It is neither ` denied, nor doubted, nor is its principle {haken, in any fub- fcqucnt cafes. On the contra, it has all the fupport we can realim ably expeét, that of being-handed to us, in our abridgments and elementary treatifes, as ei ablifhed lawf IE this cafe needed any conlirmation, it rikes me that the ihnxe principle is to be difcovercd in Pigot and Clad, reportmn. . V I. ` - fa) Carib. r_;:>. (5) L. R¢ym. 743. (c) 4 Wn. 26;. Cam, me Ext  (4/lcade Kn Be
 * · iitentto him; rind thathe canrgrggain hhciirpopcrty only byprzlt-

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