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

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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 tlie 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 ofthe 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