Page:United States Reports, Volume 2.djvu/155

 Burnin CGUIT OI Perinjyluamir. r4g _ ‘ves a recei t the e ,wlnich al accompanies thebill, g;, gd ihews Jiwupnhimieréidl and equitavbizsriglit to fue the ac- N/Z?l ‘ ‘ The cafe of Manda 1:. Carremn, in Ld. Rayon. 142. does not lland alone: In r Lntw. 888. the fame principleappean in an ad'udged cafe, upon a writ of error. The Court fay, that when the payee has once indorfed the bill, the acceptor is en- tirely dgebarged at to Lim, unlcfs hc becomes again intitled to re- ceive t e money by an aétual payment to the indorfee. · Some later cafes have the fame afpeét, and no cafe appears to the contrary. M*Kuu, Clif ja/liu, after recapitulating the fa&s, and authorities, proceeded in the following words: The acceptor of a bill of exchange is anyliable to the lah in- dorfee; for, all the prior indorfers havoparted with their intcrcflzin it, are pmtumea to have received a valuable eoniideration for it, and can, therefore, have no rightto the moneya feeond time. But if the lall; indorfee protellsthe bill for non-payment, and after- wards receives back the money from a prior indorfor, fuch in-- dorfor acquires a new title to receive the money from the accep- tor, by fuch pa ment : So that at the time this aftion was com- menced, the defendant was liable to no perfon but the lait indor- - fee, or to the prior indorfor, who had paid him. This is by the culiom of merchants, as appears in thecafe of Death ir. Serum- terr, Lutwyelre. 888. and Lewin ·v. Brunetti. 898. 'Hne plain- tilfs have accordingly alledged, that they paid the fuhfequent indorfee, but offered no proof of it, except to produce the bills` and protelis. This is not fuflicient; they ihould have produced a receipt from the lail indorfee, or fome witnefs, or evidence of payment. The ufual evidence infuch cafe is a receipt at the foot of the proteli. 1 Ld Raym. 742. In that cafe the mer- chants, who had been fworn refpeéting the cuflom, were of opinion, that this was the only evidence; but we think with Lord Halt, that if payment be any way proved, it is iiiiiicient. lf the defendant ihould pay the plaintiff the a- mount of the bills, and the lalt indorfec {hould hereafter fue him, what can prevent him from recovering the money? The. dcfendantcannot prove that he had been paid b the plaintillQ who may have come into poifeilion of the bills hy trovcr, bail- ment for a fpccial purpofe, or by fraud. Vifhay was the aéliou not brought in the name of the laii indorfee. If it had, the holding of the bills might have raifed il prefumption, that the plain- tiiis were agent.: for him. The cafe in Ld. Rnym. is in point : There thc plaintiff not only had poffellion of the bill, but he had been fupd .y the fubfequcnt indorfec, and a judgment was a- gainlllum. What might be admitted as _¤rima_/2u·ie evidence u

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