2dly. Proof ed by other circumstances; they will not therefore permit two papers that defen- one of which is proved to be the hand-writing of a party to be delivered party to the to a jury for the purpose of comparing them together, and thence infer dant was bill, &c. ring that the other is also of his hand-writing; but where witnesses have been called to prove the similitude of hand-writing, and other witnesses have from the same premises drawn a different conclusion, this rule has been relaxed in favour of a jury whose habits of life have accustomed them to the sight of hand-writing, but this mode of proceeding however seems rather a departure from the strict rules of evidence, and before an illiterate jury would probably not be adopted." In general the signature of a party to a bill or note may be proved as against him by his admission; and if he made such admission before the bill was due, and the holder received the bill on the faith of such representation, the party will be precluded afterwards from disputing the fact, or showing that the hand-writing was a forgery: (496) and in 388 an action against a person as acceptor, though the plaintiff fail in proving the defendant's hand-writing, and it appear to be a forgery, yet proof that the defendant had paid several other bills, accepted in like manner, will establish his liability. And an admission of a hand writing, made by the defendant, pending a treaty for compromising the suit, is evidence against him." So in action against an indorser, proof that the defendant had a written letter, stating that he had received a bill, corresponding with that upon which the action was brought, and that after issue joined, he had declared that he came to town to hasten the trial of a cause brought against him, on an indorsement he had made upon a bill, and that he carried the cause down by proviso, was held sufficient. But an admission in general only operates against the party making it, and therefore proof that one of the indorsers had confessed his signature is not admissible evidence in an action by an indorsee against the drawer of a bill: and we have seen, that in an action against P Macferson v. Thoytes, Peake's Rep. 20. Brookhard v. Woodley, id. note a. 9 Allesbrook v. Roach, Sittings at Westminster after Trinity Term, 1795, MS. 1 Esp. Rep. 351, S. C. Dacosta v. Pym. Ante, 386. Peake's Evid. 4th edit. 110 to 115. Leach v. Buchanan, 4 Esp. Rep. 226. Cooper v. Le Blanc, 2 Stra. 1051. Ante, 185. Hart v. King, 12 Mod. 809. Bayl. * Dale v. Lubbock, 1 Barn. K. B. 199. Bayl. 224. y Hemmings v. Robinson, Barnes, 33 edit. 436. In an action by the indorsee of a note against the maker, it was reserved as a point whether the acknowledgment of an indorser was sufficient evidence to prove his indorsement, and the court held not. In Western v. Wilmott, tried at Westminster Hall, 5th July, 1820, before Abbott, C. J. plaintiff declared against de fendant as acceptor of a bill, drawn by Berne, payable to his own order, indorsed by him to Smith, by him to Cross, and by him to the plaintiff. Plaintiff proved the (496) But notwithstanding an acknowledgment of the signature to the note, the maker may produce evidence of persons acquainted with his hand-writing, to state their opinion that the signature is not genuine, and also to prove the same by signatures known to be his. Such an acknowledgment is not conclusive, and may be shown to have been made by mistake. Hall v. Huse, 10 Mass. Rep. 39. The acknowledgment of the maker of his hand-writing on the note does away the necessity of proving it by the subscribing witness. Hall v. Phelps, 2 John. Rep. 451. If the subscribing witness deny the execution of the note, it may be proved aliunde. Ibid. Where the subscribing wit ⚫ness is out of the state, other evidence is admissible to prove the hand-writing of the maker, and this before proving the hand-writing of the subscribing witness. Horner. Wallis, 11 Mass. Rep. 309. several drawers, indorsers, or acceptors, a mere admission upon the 2dly. Proot pleadings by one of his signature will not exempt the plaintiff from that defenproving it against the others, though an admission in fact would be other party to the wise. The payment of money into court, generally, on the whole bill, &c. declaration, precludes the defendant from disputing his signature.^ But an offer to pay a part as a compromise is no evidence, because, as observed by Lord Mansfield, men must be permitted to endeavour dant was to buy their peace without prejudice to them, if the offer do not[ 389 ] succeed. A promise by the acceptor or other party to pay the bill after it was due will preclude the necessity for proof of the defendants, or any other parties, hand-writing.c Thirdly. It will be incumbent on the plaintiff to prove his interest in 3dly. Proof the bill or note, or, in other words, how he became a party to it. The of the plainpayee or the bearer of a bill or note, originally payable to bearer, has in tiff's integeneral only to produce the instrument; though under suspicious circumstances, the bearer of a note transferrable by delivery, may be required to prove that he or some person, under whom he makes his title, took it bona fide, and gave valuable consideration for it." But if in an action by the indorsee of a note, payable to A. or bearer, the indorsement by A. be unnecessarily stated, it must be proved. Proof of a promissory note payable to A. B., generally, is prima facie evidence of a promise to A.B. the father, and not to A. B. the son, the names being the same; but A. B., the sor, bringing the action, and being described as the younger in the declaration, and being in possession of the note, is entitled to recover upon it.' indorsement by Berne, and by Cross, and that Smith, on being applied to after the defendant was shown the bill and indorsements, and admitted the indorsement of Smith as his hand-writing. It was also proved, that the defendant, after the bill became due, was shown the bill, and informed that plaintiff was the holder; where upon he admitted it was a just debt, and that he would pay shortly. Chitty, for plaintiff, submitted, that such acknowledgment by Smith was sufficient in this action, and that defendant's adraission was also equivalent to an account stated. But Abbott, C. J. said, that such admission by a third person could not affect the defendant; and that as there was no original defendant, or priority between the parties, this was not an account stated; therefore plaintiff was nonsuited. But see post, 396, note. Per Lord Mansfield, C. J. in Grant o. • Waynam v. Bend, 1 Campb. 175. Rex The Waynam v. Bend, 1 Campb. 175. Action against the defendant as maker of a promissory note for 2007., payable to L. Toader or bearer. The declaration stated, that L. Toader, to whom the sum of money mentioned in the note was payable, indorsed it to the plaintiff. No evidence of this indorsement being given, it was contended, that the plaintiff's case was imperfect, and that he must be called. counsel on the opposite side answered, that the averment being unnecessary, might be rejected; and that at any rate the plaintiff might recover under the count for money had and received, the note being for value received. Lord Ellenborough held, that as an indorsement was stated, though unnecessarily in the count on the note, it must be proved; and that the plaintiff could not recover under any of the money counts, as he was not an original party to the bill, and there was no evidence of any value being received by the defendant from him. A witness, however, was afterwards found who proved the hand-writing of L. Toader, and the plaintiff had a verdict. f Sweeting v. Fowler and another, 1 Stark. 106. 3dly. Proof tiff's inte An indorsee of a bill or note, transferrable in the first instance only of the plain- by indorsement, must, in an action against the acceptor or drawer, prove rest, &c. that the bill was indorsed by the person to whose order it was intended [390] to be made payable; and if there was a subscribing witness to the indorsement, he must be subpoenaed. And even in an action against the acceptor, the first indorsement of a bill must be proved, although it was payable to the drawer's own order, and indorsed by him, because the acceptance only admits the hand-writing of the party as drawer, and not as indorser. And it has even been holden, that the circumstance of the defendant having accepted the bill after it was indorsed, does not dispense with proof of such indorsement; and in an action by an indorsee against the drawer, the indorsement of the payee must be proved, although the bill with the indorsement upon it was shown to the defendant after it was due, and he did not then object to the title of the holder,' and proof that the bill was indorsed by a person [391]of the same name as the person intended will suffice; and therefore if there be any doubt whether the transfer were made by the proper party, the witness who is to prove the indorsement should be prepared to prove the identity of the party, though in general it will lie on the defendant to disprove the identity; and though the drawee by the terms of his acceptance make it payable at a banker's they must in an action for the money, as paid for his use, prove the first indorser's hand-writing." And though the acceptance of a bill drawn by procura Smith v. Chester, 1T. R. 654. Macferson v. Thoytes, Peake Rep. 20. Bower Smith v. Chester, 1 T. R. 654. Indorsee puting; and it is on that account that an acceptor is liable, even although the bil be forged. Per Grose, J. This matter appears extremely clear; for the payment of a bill of exchange to the holder is no payment to the person in whose favour it is drawn, unless it is indorsed by him. Rule refused. Macferson v. Thoytes, Peake Rep. 20. Assumpsit on a bill of exchange, indorsee against acceptor. The bill was drawn by one Parry, payable to his own order, and the name of Parry was indorsed on it. The plaintiff proved the hand-writing of all the indorsers, except the first. The defendant's counsel insisted that this should be proved. It was answered, that the acceptance was an admission of the hand-writing of the drawer, and that by comparing that hand-writing with the indorsement, they would be found to correspond. Per Lord Kenyon. Comparison of hands is no evidence. If it were so, the situation of a jury, who could neither write nor read, would be a strange one; for it is impossible for such a jury to compare the hand-writing. The plaintiff was therefore called. b Stone v. Metcalf, 1 Stark. 53. Aate, 383. Supra, note, and Bosanquet . Ander son, 6 Esp. Rep. 43, post, 396, note. * Id. ibid. Duncan v. Scott, 1 Campb. 101. 2 Campb. 183, in notes. m Mead v. Young, 4 T. R. 28. Ante, 111. tiff" inte tion admits the agent's hand-writing and his authority, yet if it does 3dly. Proof not admit the indorsement by the same procuration, and in an action of the plainagainst the acceptor, the indorsement as well as the authority to make it must be proved." ers London, to recover the sum of 1007., paid by them to the holder of a bill of exchange, accepted by the defendant, payable at their banking-house. The bill was drawn by one Hanley, payable to his own order, and when paid by the plaintiffs, had his indorsement upon it. Paley, of coun. sel for the plaintiffs, at first satisfied himself with proving the defendant's handwriting to the bill; that it was paid by the plaintiffs; and that the defendant had then no effects in their hands. Lord Ellenborough said he must go farther, and give evidence of the indorsement by Hanley, to whose order the bill was payable. Paley contended that prima facie the hand-writing must be taken to be Hanley's, and that as it was the custom of bankers to pay a bill with the name of the payee written on the back of it, a request, from the acceptor must be understood for them to do so. When the bill was presented to the plaintiffs for payment, it appeared in a negotiable shape, and they were authorized to pay it without inquiring into the title of the holder. Per Lord Ellenborough, if the acceptor of a bill of exchange makes it payable at a banker's, he requests the latter to pay it only to the payee or his own order, and not to any person who presents it. If the banker pays it without ascertaining the indorsement to be genuine, it is at his own risk. The name of Hanley upon the bill may be forged, in which case the plaintiffs have paid it in their own wrong. Evidence was afterwards given of acknowledgment by the defendant, that Hanley had indorsed the bill, and the plaintiffs had a verdict for the 1007., but without interest, to which Lord Ellenborough said, they had shown no right. Robinson and another c. Yarrow, 7 Taunt. 455. 1 Moore, 150. S. C. Held, that the acceptance of a bill of exchange admits merely the drawing, but not the indorsement of the drawer. Therefore if a bill be drawn and indorsed by procuration, it was held in an action by the indorsees against the acceptor, that as the indorsement by procuration was not proved, they were not entitled to recover. This was an action brought by the plaintiffs as indorsees against the defendant, as acceptor of the following bill of exchange: "London, July 6, 1816. "Two months after date pay to our "order, thirty pounds for value re"ceived. "Per pro CHA'. STACHEN and Co. "A. HENRY." "To Mr. John S. Yarrow, "17, Broad Street Buildings, London." And indorsed on the back, "Per pro Cha1. Stachen and Co. "A. Henry Henry and Co." The first count of the declaration stated, that A. Henry, using the name, style, and firm of C. Stachen and Co. drew the bill on the defendant, and that after his acceptance he indorsed it to the plaintiffs. The second count stated, that Henry drew and indorsed the bill in his own name; and the third that the bill was drawn and indorsed by certain persons using the name, style, and firm, of Stachen and Co. who indorsed it, but neither of these courts noticed the presentation. The cause was tried before Mr. Justice Burrough, at the Sittings at Guildhall, after the last Hilary Term, when the plaintiffs adduced evidence to prove that the body of the bill of exchange, as well as the indorsement, was of the hand-writing of Henry, who was previously a partner with Stachen and Co. but that at the time of drawing the bill there was no such firm as Stachen and Co. that such a firm had existed, which was dissolved on the 1st of January, 1816; and after that time Henry carried on business on his own account. The hand-writing of the defendant as acceptor, and the due presentment of the bill were also proved but no evidence was given of the hand-writing of the indorsement by Henry. On the production of the bill, it appeared to have been drawn and indorsed by Henry, per procuration of Stachen and Co. The learned Judge thought the plaintiffs ought to prove the procuration, and as they were not prepared with such proof, he accordingly directed a nonsuit. A rule nisi had been obtained, and, on showing cause, Lord Chief Justice Gibbs said, I cannot say whether there has been any private communication between these parties, but can only look to the instrument itself. Stachen and Co. appear to have authorized Henry to draw the bill payable to their order. The defendant by his acceptance admits that such a firm as Stachen and Co. was in existence, and also the bill was drawn by Henry by their procuration. By accepting this bill purporting to be drawn by Henry, as the agent for Stachen and Co. the defendant renders himself answerable to them for its amount. The defendant has by his acceptance admitted, that Henry was authorized to draw the bill by procuration, but he has not admitted thereby that it might be indorsed in this man rest, &c. 3dly. Proof So where the first indorsement was in full, directing the acceptor to the bill to a certain person, who has indorsed the same to the plaintiff, he must in an action against the drawee or acceptor, prove the indorsement of that person, and all the indorsements stated, though unnecessarily, in the declaration, must be proved, and therefore, it is usual, where there are several indorsements, to insert two counts, one stating the several indorsements, and the other describing the plaintiff as the immediate indorsee of the first indorser." But if the first indorsement was in blank, it will be unnecessary even in an action against the drawer or acceptor, to prove any of the subsequent indorsements, although they were in full, but they may be struck out at the time of the trial, unless they be unnecessarily stated in the declaration." And a small mistake in the declaration in the [393 name of the indorser, as describing him as Phillip, when the bill and the evidence prove him to be Phillips, will not be material. If the bill or note be payable to the order of several persons not in partnership, the hand-writing of each must be proved, and though it is reported to have been held in one case, that an acceptance after an indorsement by one of the payees, admits the regularity of the indorsement; that decision appears to be contrary to former authorities, though, if a bill have several indorsements upon it at the time it is presented for acceptance, and the drawee, when he accepts, expressly promises to pay the bill, it has been decided that the indorsements are admitted. Forman v. Jacob, 1 Stark. Rep. 47. It appeared that the name of the indorser was Phillip Phillips; and it was objected that this varied from the allegation of an indorsement by Phillip Phillip, the person being different. The bill itself was payable to Phillip Phillips, and the name was so indorsed on the bill. Per Lord Ellenborough, whether the name on the bill be the party's false or true name is immaterial, if it be his name of trade, the only question is as to the identity of the person. " Carvick v. Vickery, Dougl. 653. * Jones and another v. Radford, K. B. Sittings after Hilary Term, 46 Geo. 3. 1 Campb. 83, (but see Carvick v. Vickery, Dougl. 630, 653. Hankey v. Wilson, Say. 223, contra,) held, that in an action upon a bill drawn, payable to the order of two persons not partners, indorsed by one in the name of both, and afterwards accepted by the defendant, that the re gularity of the indorsement could not be disputed. Action by the indorsee against the acceptor of a bill of exchange, pay. able to two persons of the names of Hop kins and M Michell. The bill had been indorsed by Hopkins in the name of him self and M Michell, and defendant had accepted it with the indorsement upon it The defence was, that the payees were not partners, and that the bill ought therefore to have been indorsed by both But Lord Ellenborough held, that the defendant having accepted the bill indorsed by one for himself and the other, could not now dispute the regularity of this indorsement, but see Carvick v. Vickery, Dougl. 85. Smith v. Chester, 1 T. R. 654. Ante, 390. y Sir Joseph Hankey and Company Wilson, Sayer's Rep. 223. Upon a rule to show cause why a new trial should not be had in an action of assumpsit it ap peared, that the action was brought by the plaintiffs, as indorsees of a bill of exchange; that the defendant had accepted the bill; that there was no actual proof, that the name of one of the indorsers c the bill was of his hand-writing; that the name of that indorser, and the names of |