3dly. Proof of the plaintiff's interest, &c,

prove the names of the partners of a firm, the counsel for such plaintiffs may suggest to the witness called to prove the partnership, the names of the component members of the firm '.

It has been decided, that the admission by an indorser of a promissory note of his hand-writing is sufficient evidence of the indorsement in an action against the maker, because such admission is in derogation of the party's own title to the note, and therefore admissible. And a promise to pay or offer to

3

would be sufficient to prove that Langton and Co. consented to appropriate the bill to the three plaintiffs as trustees. If Langton and Co. had indorsed it to the plaintiffs the right to sue would have been clear, or they might have transferred the right by a delivery of the bill, but without some evidence of this kind, the right to sue still remains in Langton and Co. Had it not been for the evidence of the particular transfer to Langton and Co. an indorsement in blank might have entitled the parties, who bring the action to recover. Plaintiffs

nonsuited.

Acerro and others v. Petroni, 1 Stark. 100. Assumpsit by the plaintiffs, bankers at Paris, upon an account stated by the defendant. The witness called to prove the partnership of the plaintiffs could not recollect the names of the component members of the firm so as to repeat them without suggestion, but said he might possibly recognise them, if suggested to him. Lord Ellenborough, alluding to a case tried before Lord Mansfield, in which the witness had been allowed to read a written list of names, ruled, that there was no objection to asking the witness whether certain specified persons were members of the firm. The witness recollected the surnames but not the christian names, of those mentioned as members of the firm, and their christian names being specified in the declaration in the count upon the account stated, and the terms of the acknowledgment being generally to Acerro and Co. the plaintiffs were nonsuited. Sed quære as to the christian names, which are not in general material. See Hodenpyl v. De Vingehoed and another, ante, 489.-3 Campb. 29.-2 Marsh. 159. Maddocks v. Hankey, 2 Esp. Rep. 647. Assumpsit by the indorsee of a promissory note against the maker; the promissory note was drawn by the defendant payable to one Sellier, who indorsed to Rymer, by whom it was indorsed to the plaintiff. The plaintiff proved the hand-writing of the defendant and Rymer, by persons acquainted with them, and the only doubt in the case was as to the hand-writing of Sellier. The evidence to establish that fact was of a person who had gone to Sellier, he then being in prison, and asked him if that was his hand-writing. To whom he acknowledged that it was. Gibbs, for the defendant, objected to this evidence, insisting, that such an admission of a fact was not evidence against the de fendant, as it might be material to ascertain the time when the indorsement had been made. Lord Kenyon said, that he thought it was admissible and sufficient evidence, as it went in derogation of the parties own title to the note, but he offered to reserve the case.-The plaintiff had a verdict; but see ante, 497, n. 4.

2

Hankey v. Wilson, Sayer, 223, ante, 503, n. 4.

renew made to an indorsee after the bill was due, 3dly. Proof of the plainti's indispenses with the necessity for proof of the indorse- terest, &c.

1 Bosanquet v. Anderson, 6 Esp. Rep. 43.-Sedford and another . Chambers, 1 Stark. 326. - Bayl. 220. Bosanquet v. Anderson, 6 Esp. Rep. 43. In an action by the indorsee of a bill of exchange, where several indorsements have taken place, which are laid in the declaration, though necessary to be proved in general, yet if defendant applies for time to the holder, and offer terms, it is an admission of the holder's title, and a waiver of proof of all the indorsements except the first. Assumpsit by the plaintiff as indorsee of a bill of exchange, drawn by Wilson in his own favor on the defendant who accepted it, and indorsed over by Wilson. The declaration stated several indorsements on the bill. The evidence for the plaintiff was only proof of the hand-writing of the first indorser, and that the defendant, when the bill became due, came to the plaintiffs, who were bankers, and then holders of the bill, and offered another bill in the place of it, he being then unable to take it up. It was contended for the defendant that it was necessary for the plaintiff to prove all the indorsements on the bill stated in the declaration, for that by the averments so made he had bound himself to prove them, though if he had not done so and declared only on the first indorsement, he might have recovered on that only. It avas answered by the plaintiff's counsel that it was sufficient for the plaintiff to prove the hand-writing of the first indorser under the circumstances above stated; that of his offering terms to the plaintiff and thereby admitting the bill to be his; and that there was no necessity for proving the hand-writing of all the indorsers though so laid in the declaration, as by such admission and offer he admitted the plaintiff's title to the bill, and thereby waived the necessity of such proof as would be otherwise necessary. Lord Ellenborough said, that the acceptor by his acceptance admitted the hand-writing of his correspondent, the drawer, but if payable to the drawer's own order his hand-writing as such indorser must in every case be proved, as that put the bill into circulation, and though he accepted the bills with many names on it, if they were laid in the declaration they should be proved; but he was of opinion that the offer here made by the acceptor to pay the bill to the plaintiffs, who then held the bill, with all the names on it, was a sufficient admission of the plaintiff's title, which was derived through the several indorse, ments, and of the defendant's liability so as to supersede the necessity of proof of each person's hand-writing.-Verdict for plaintiff.

Sedford and another v. Chambers, 1 Stark. 326. This was an ac. tion by the indorsees of a bill of exchange against the indorser. The bill was drawn by Fish, on Hill and Co., payable four months after date to the order of Fish, and indorsed by Fish to the defendant, by the defendant to Sheckles, by Sheckles to Niblock and Co., and by the latter to the plaintiffs. All the indorsements were stated in the declaration. The plaintiffs proved all the indorsements except that of Sheckles, and in order to supersede the proof of this indorsement they gave in evidence a letter written by the defendant to the plaintiffs, offering to give them a substituted bill to be approved of by any moderate person, but stating that he had not mouey to take it up with; adding, that he hoped that it was not in the hands of Niblock and Co. At the time this letter was written the bill was in the hands of the solicitor for the plaintiffs, and the indorsements were complete. The AttorneyGeneral for the plaintiffs submitted, that this evidence was sufficient without further proof, and cited the case of Bosanquet v. Anderson, 6 Esp. Rep. 43, to shew that an application by a defendant for time

3dly. Proof of

the plaintiff's interest, &c.

ment, because it admits the title of the holder. And after a partnership has been established in evidence, the admission of a partner, though not a party to the suit, is evidence as to joint contracts against any other partner, as well after the determination of the partnership as during its continuance'. But although a bill of exchange has been shewn to the drawer, with the name of the payee indorsed upon it, and he merely objects to paying it, that he had drawn it without consideration, in an action against him by the indorsee this does not dispense with regular proof of the indorsement. The payment of money into court generally, on the whole declaration, amounts to an admission of the indorsement, and dispenses with the necessity for proving it3.

In an action against an indorser of a bill or note, the hand-writing of the drawer, and all prior indorsers being admitted by the defendant's indorse

was an admission of liability. Lord Ellenborough remarking, that the hope expressed by the defendant that the bill was not in the hands of Niblock and Co., who were indorsers subsequent to Sheckles, shewed that he knew the channel through which the plaintiffs title had been derived, was of opinion that the evidence amounted to proof of their title through that channel.-Verdict for the plaintiff.

Wood and others v. Braddick, 1 Taunt. 104.-Phil. Ev. 3d ed. 75, 6.

Duncan v. Scott, 1 Campb. 101.

3 Gutteridge v. Smith, 2 Hen. Bla. 374.

Lambert v. Pack, 1 Salk. 127.-1 Lord Raym. 443.-12 Mod. 244.-Holt, 117. S. C.-Fre v. Rawlins, 1 Holt, C. N. P. 550. 5 Id. ibid. Critchlow v. Parry, 2 Campb. 182.-Chaters v. Bell, 4 Esp. 210, ante, 461, 2.-Bayl. 220. Critchlow v. Parry, 2 Campb. 182. Action by the indorsce against the indorser of a bill of exchange. The declaration stated several indorsements prior to that of the defendant, which was immediately to the plaintiff. A question arose whether, upon proof of the defendant's hand-writing it was necessary to prove the hand-writing of any of the prior indorsers. Lord Ellenborough at first doubted whether it was not necessary in this case, as well as in an action against the acceptor, to prove all the indorsements that were mentioned in the declaration, and particularly that of the original payee. Clark, for the plaintiff, contended, that the defendant's indorsement admitted all antecedent indorsements; that even if they were forged, he would be liable; that he was to be considered as the drawer of a new bill of exchange; and that his contract was very different from that of the acceptor, who only undertook to pay to the payce, or his order, and against whom, therefore, a title, through the payee, must be established. Lord Ellenborough was of this opinion, and the plaintiff had a verdict.

the plaintiff's ing

ment, they need no be proved. But if a subsequent sily. Proof of indorsement be stated in the declaration they must be terest, &c. proved, and therefore it is usual when there are indorsers subsequent to the defendant, whom the plaintiff does not wish to discharge, to insert one count, stating all the indorsements, and another describing the plaintiff as immediate indorsee of the defendant.

In an action at the suit of an executor against the acceptor of a bill, on a promise laid to the testator, the plaintiff must prove that the bill was accepted in the testator's life-time; and, as we shall hereafter see; when a bill or note is attempted to be set off against the claim of the assignees of a bankrupt, the party must prove that the note came to his hands before the bankruptcy 3. But if the act of bankruptcy were secret, and the bill or note proposed to be set off, were afterwards received by the party two calendar months before the commission was issued, and without notice of the bankruptcy, he may set them off.

When the drawer of a bill payable to the order of a third person, and returned to and taken up by him, sues acceptor, in order to shew that the right of action has become vested in him, he should be prepared to prove such return to him, and it has been considered, that when a prior indorser, who has been obliged to pay a subsequent indorser, sues the acceptor, he should prove such payment.

'Ante, 461, 2.—Bosanquet v. Anderson, 6 Esp. Rep. 43.-Sedforth v. Chambers, 1 Stark. 326.-Ante, 507.

.

Anonymous, 12 Mod. 447.-Sarell v. Wine, 3 East. 409.

'Dickson v. Evans, 6 T. R. 57.-Moore v. Wright, 2 Marsh. 209. 6 Taunt. 517. S. C.-Oughterlony v. Easterby, 4 Taunt. 888.-See post, Bankruptcy.

+46 Geo. 3. c. 135. s. 3.

As to such action, see ante, 410; and Symonds v. Parminter, 1 Wils. 185.-4 Bro. P. C. 604.-Ante, 440.

• Mendez v. Carreroon, sed quære.

Mendez v. Carreroon, 1 Lord Raym. 742. In case upon a bill of exchange, upon the evidence at the trial before Holt, C.J. at Guildhall, Nov. 23, Mich. 12 W. 3, the case was this: A. drew a bill of exchange upon B. payable to C. at Paris; B. accepted the bill, C. indorsed it, payable to D., D. to E., E. to F., F. to G., G. des manded the bill to be paid by B. and upon non-payment G. protested it within the time, &c. and then G. brought an action against D.

3dly. Proof of the plaintiff's interest, &c.

In an action by an accommodation acceptor, against the drawer for money paid, or specially for not indemnifying the plaintiff, should prove that the bill has been in circulation, and the production of the bill from the custody of the acceptor, is not primâ facie evidence of his having paid it, without proof that it was once in circulation after it had been accepted, nor is payment to be presumed from a receipt indorsed on the bill, unless such receipt is shown to be in the handwriting of a person entitled to demand payment'. It has, however, been held, that a general receipt on the

and it was well brought, and he recovered; afterwards D. brought an action against B. and though D. produced the bill and the protest, yet because he could not produce a receipt for the money paid by him to G upon the protest as the custom is among merchants, as several merchants on their oaths affirmed, he was nonsuited. But Holt seemed to be of opinion, that if he had proved payment by him to G. it had been well enough.

Pfiel v. Vanbatenberg, 2 Campb. 439. Action for money lent. The plaintiff's case was, that he had accepted and paid several bills of exchange for the defendant's accommodation. The bills were produced by the plaintiff, and proved to have been drawn by the defendant. They were likewise receipted in the usual form of bills paid, but it did not appear by whom the receipts were written. Richardson contended that the simple production of the bills by the acceptor, was primâ facie evidence of payment. They could not have got into his hands unless he had paid them, and the presumption that an instrument in the possession of the person liable upon it is satisfied, has been invariably acted upon. But the receipts indorsed on these bills put the matter beyond all doubt, as the defendant was guilty of forgery if the bills had not been paid, and the law would not presume that a man had committed a capital offence. Lord Ellenborough. Shew that the bills were once in circulation after being accepted, and I will presume that they got back to the acceptor's bands by his having paid them. But when he merely produces them, how do I know that they were ever in the hands of the payee, or any indorsee, with his name upon them as acceptors? it is very possible, that when they were left for acceptance, he refused to deliver them back, and having detained them, now produces them as evidence of a loan of money. Nor do I think the receipts carry the matter a bit further, unless you show them to be in the hand-writing of the defendant, or some other person authorised to receive payment of the bills. A man cannot be allowed to manufacture evidence for himself at the risk of being convicted of forgery; and it is possible, that though the bills are unsatisfied, these receipts may have been fraudulently indorsed without the plaintiff's privity. The fact of payment still haugs in doubt, and you must do something more to turn the balance. Prove the bills out of the plaintiff's possession accepted, and I will presume that they got back again by payment. If you do not, the plaintiff must be called. However, a witness afterwards swore that the defendant had acknowledeged the debt, and the plaintiff had a verdict.