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tiff's inte

In an action against the drawer or acceptor of a bill payable to the Sdly. Proof order of several persons in partnership, it is in general necessary to of the plainprove the partnership, and the hand-writing of one of them or of an agent in the name of the firm.

Where a bill ash been made payable to the order of a fic itious person, it has been decided, that proof, that the party sued, knew of that circumstance at the time he became a party to the bill, or before he transferred the same, will dispense with proof of the hand-writing of the supposed indorser."

Where several persons sue as indorsees of a bill of exchange, if the bill appears indorsed in blank, there is no necessity for their proving that they were in partnership together, or that the bill was indorsed or delivered to them jointly. But when a bill of exchange is payable or indorsed specially to a firm, it has often been ruled, that in an action by the payees or indorsees strict evidence must be given that the firm consists of the persons who sue as plaintiffs on the record. And where a bill of exchange was, by the direction of the payee, indorsed in blank and delivered to A. B. and Co. who were bankers, on the account of the estate of an insolvent, which was vested in trustees for the benefit of his creditors, it was held that A. and B. two of the members of the firm, and also trustees, could not, conjointly with a third trustee who is not a member of the firm, maintain an action against the indorser without some evidence of the transfer of the bill to them as trustees by the firm, by delivery or otherwise.

all the other indorsers were upon the bill at the time of its being accepted; that at the time of his accepting it, the defendant promised to pay the bill, and that upon this evidence, which was left by Ryder, Ch. J. to the jury, a verdict was found for the plaintiffs. The question was, whether upon this evidence, the matter ought to have been left to the jury? It was holden that it ought. And by the court.It is in general necessary to give actual proof that the name of every indorser is of his hand-writing; but it is not necessary to do this in every case. In the present case, it was a matter proper for the determination of a jury, whether the acceptance of the bill when all the indorsers names were upon it, together with the promise to pay did not amount to an admission that the name of every indorser is of his hand writing, inasmuch as such an admission would supercede the necessity of actual proof, that the name of any indorser is of his hand-writing.

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When it is incumbent

ship, or that the bill had been indorsed
to them jointly, Garrow, for the defend-
ant insisted that they ought to be non-
suited. The declaration alleged, that the
drawer of the bill indorsed and delivered
the bill to the three plaintiffs, and there
was no evidence whatsoever in support
of his allegation. Per Lord Ellenbo-
rough. There is no occasion for any such
evidence. The indorsement in blank con-
veys a joint right of action to as many as
agree in suing on the bill. The plaintiffs
had a verdict.

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rest, &c..

3dly. Proof on the plaintiffs to prove the names of the partners of a firm, the counof the plain-sel for such plaintiffs may suggest to the witness called to prove the partnership, the names of the component members of the firm.

tiff's

est, &c.

[396] 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. But this

sed by the latter in blank. The principal question was, whether under the circumstances such a right had been transferred to the plaintiffs as entitled them to sue upon the bill. It appeared that Machell and Boucher were two of the partners of which the firm of Langton and Co. consisted. Machell, Boucher, and Birkbeck, the three plaintiffs, were the trustees of the estate of Holder, an insolvent, for the benefit of the creditors; Birkbeck not being a member of the firm of Langton and Co. The defendant being indebted to the estate of Holder, transmitted the bill in question to his clerk in Liverpool, with directions to deliver it to Langton and Co. on the account of Holder's estate, and either to indorse it or to give them a letter of guarantee to secure the payment. The clerk accordingly indorsed it in blank and delivered it to Langton and Co. Garrow, A. G. for the defendant, objected that it was not competent to two of the firm of Langton and Co. to associate with themselves a third person who was a stranger, for the purpose of bringing an action on the bill, without showing that the bill had been transferred by Langton and Co. to the plaintiffs, thus associated. Marryat, for the plaintiffs, contended, that since the bill had been indorsed in blank, it was competent to any number of persons to associate together for the purpose of bringing an action. And he cited the case of Ord and others v. Portal, 3 Campb. 239, where it was held, that an indorsement in blank conveyed a joint right of action to as many as agreed to sue upon the bill; per Lord Ellenborough, the bill having been indorsed and delivered to Langton and Co. according to Kinnear's direction, Langton and Co. had authority to appropriate it. Since it was paid to them on account of Holder's estate, if they had received the amount it would have been money had and received by them on account of the estate, but the evidence, as it stands, proves the interest in the bill to be in Langton and Co. It 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 r. Petroni, I 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 plaintiff could not recolof the firm so as to repeat them without lect the names of the component members suggestion, but said he might possibly recognise them, if suggested to him. Lord fore Lord Mansfield, on which the witness Ellenborough, alluding to a case tried be 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 the count upon the account stated, and the names being specified in the declaration in 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 Vingerhoed and another, ante, 381. 3 Campb. 29. 2 Marsh. 159.

f 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, ob jected to this evidence, insisting, that such an admission of a fact was not evidence against the defendant, as it might be material to ascertain the time when the indorse ment had been made. Lord Kenyon said, that he thought it was admissible and suthcient evidence, as it went in derogation of the parties own title to the note, but he of fered to reserve the case. The plaintiff had a verdict; but see ante, 388. note.

est, &c.

doctrine seems now over-ruled; the indorser himself may be called 3dly. Proof of the plainas a witness to prove his own hand-writing; and he may be called to tiff's interprove his indorsement after another witness for the plaintiff has negatived it; though it has been doubted whether, after the plaintiff has failed in proving the indorsement by one witness, he can call any other person.* And a promise to pay,' or offer to renew," made to an indorsee after the bill was due, dispenses with the necessity for proof of the indorse-[ 597 1 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

8 Western v. Wilmott, and Hemmings v. Robinson, ante, 388.

Richardson v. Allan, 2 Stark. 334.

i Id. ibid.

k Id. ibid.

Hankey v. Wilson, Say. 223. Ante, 392, note.

Bosanquet . Anderson, 6 Esp. Rep. 44. Sedforth and another v. 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 favour 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 was 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 handwriting 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 indorsements, and of the defendant's liability so as to supercede the necessity of proof of each persons handwriting. Verdict for plaintiff.

Sedforth and another v. Chambers, 1 Stark. 826. This was an action 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 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 supercede 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 money to take it up with; adding, that he hoped 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 indorse ments were complete. The Attorney. General 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 show that an application by a defendant for time 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, showed 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 plaintiffs.

est, &c.

3dly. Proof any other partner, as well after the determination of the partnership of the plainas during its continuance. But although a bill of exchange has been tiff's inter- shown 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 of proving it..

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 [398] defendant's indorsement, they need not be proved. But if a subsequent indorsement be stated in the declaration they must be 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, and 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. 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 the acceptor, in order to show 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

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

• Duncan v. Scott. 1 Campb. 104.
P Gutteridge v. Smith, 2 Hen. Bla.

.374.

Lambert v. Pack, 1 Salk. 127. 1 Ld.,
Raym. 443. 12 Mod. 244. Holt, 117. S. C.
Free v, Rawlings, Holt C. N. P. 550.

Id. ibid. Critchlow v. Parry, 2 Campb.
182. Chaters v. Bell, 4 Esp. Rep. 210.
Ante, 359, 360. Bayl. 220.

Critchlow v. Parry, 2 Campb. 192. Action by the indorsee 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 he 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 payee, 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.

Ante, 359. Bosanquet r. Anderson. 6 Esp. Rep. 43. Sedford v. Chambers, Stark. 326. Ante, 396.

1

Anon. 12 Mod. 447. Sarell v. Wine 3 East, 409.

" Dickson v. Evans, 6 T. R. 57. Moor v. Wright, 2 Marsh. 209. 6 Taunt. 517 S. C. Oughterlony v. Easterby, 4 Tauut 888. See post, tit. Bankruptcy.

* 46 Geo. 3. c. 135. s. 3.

y As to such action, see ante, 343, 4; and Simmons v. Parminter, 1 Wils. 185. Bro. P. C. 601.

when a prior indorser, who has been obliged to pay a subsequent indor- 3dly. Proof ser, sues the acceptor, he should prove such payment."

of the plain

inte

rest, &c.

In an action by an accommodation acceptor, against the drawer for 399 ] money paid, or specially for not indemnifying the plaintiff, he should prove that the bill has been in circulation, and the production of the bill from the custody of the acceptor, is not prima 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 back of a bill is prima facie evidence of its having been paid by the acceptor, and will not of itself be evidence of a payment by the drawer, though it is produced by him,"

We have seen, that in some cases, the plaintiff will be called upon Considerato prove the consideration, which he gave for the bill or note. In an tion. action by the indorsee of a bill of exchange, if it appear that a prior [ 400 ] party made it under duress, or was defrauded of it, and the plaintiff has previous notice to do so, he must be prepared to prove under what circumstances, and for what value he became the holder. "

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. Term, 12 William 3, the case was this: A. drew a bill of exchange upon B. payable to C. at Paris; B. accepted the bill, &e. indorsed it, payable to D., D. to E., E. to F., F. to G., G. demanded 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., 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, C. J. seemed to be of opinion, that if he had proved payment by him to G. it had been well enough.

Phel v. Van Battenberg, 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 prima 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 invaria

bly 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. Show that the bills were once in circulation after being accepted, and I will presume that they got back to the acceptor's hands 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 indorsce, with his name upon them as acceptor? 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 authorized 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 hangs 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 acknowledged the debt, and the plaintiff had a verdict.

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