defendant. I have no difficulty in saying, that this H. Da vis, knowing that the bill was not intended for him, was guilty of a forgery; for the circumftance of his bearing the fame name with the payee cannot vary this cafe, fince he was not the fame perfon. Then if the plaintiff cannot recover on this bill, he will be induced to profecute the forger; and that would be the cafe even if it had paffed through feveral hands, because each indorfer would trace it up to the person from whom he received it, and at last it would come to him who had been guilty of the forgery; whereas if the plaintiff fucceed in this action, he will have no inducement to prosecute for the forgery; the drawer, on whom the lofs would in that cafe fall, might have no means of discovering the person who committed the forgery, and thus he would .probably escape punishment. As far, therefore, as convenience can have any effect, it weighs ftrongly with me to receive the evidence. But, at all events, the plaintiff cannot recover, fince he derives his title under a forgery.

GROSE, J.-I am of opinion that it was competent to the defendant to fhew in evidence that the person who indorfed to the plaintiff, was not the perfon named as the payee in this Bill of Exchange; and I form that opinion as well on the fubftance of the tranfaction as on the form of pleading in fuch cafes. A Bill of Exchange is only a transfer of a chofe in action, according to the cuftom of merchants; it is an authority to one perfon to pay to another the fum which is due to the first, and it is generally directed to be paid to the payee or his order. When the perfon, on whom it is drawn, accepts, he only engages by the terms of his acceptance to pay the contents of the bill to the perfon named in it, or to his order. The general form of the declaration, which is to be found in fome of the old entries, alfo agrees with this doctrine, and points out what the law is: I obferve indeed that this declaration is not drawn in the ufual form, for the words " to whom or to whose order," are omitted; but still it is that the faid H. Davis, that is the fame H. Davis who is mentioned in a former part of the declaration as the payee, indorfed to the plaintiff. It clearly therefore appears, that as no perfon can demand payment of a Bill of Exchange but the payee, or the perfon authorised by him, the acceptor only undertakes to pay to them, and cannot be compelled to pay to any other perfon. If he pay the amount of the bill to any other perfon, he pays it in his own wrong, and fuch payment does not difcharge his debt to the drawer. If this decifion will prove a clog on the circulation of Bills of Exchange, I think it

will be lefs detrimental to the public, than permitting perfons to recover through the medium of a forgery. And that this was a forgery cannot be doubted, if we confider the definition of it; which is, the falle making of any inflrument, indorfement, &c. with intent to defraud. It makes no difference whether the perfon making this falfe indorsement were or were not of the fame name with the payee, fince he added the fignature of H. Davis, with a view to defraud, ́and knowing that he was not the perfon for whom the bill was intended. I agree alfo with my brother Buller, that this decifion will be more convenient to the public; because then the plaintiff will profecute the perfon, who indorfed to him, for the forgery. For these reasons I am of opinion, as this Bill of Exchange was only payable to the payee, or his order, it was competent to the defendant, the acceptor, to inquire whether the perfon under whom the plaintiff claims, were or were not the payee.

By the Court,

Rule absolute.

Ross v. HUNTER.

This was an action against an under-writer, upon an infurance on goods on board the Live Oak, whereof Jofeph Rati was mafter, from Jamaica to New Orleans. There were two counts in the declaration; 1ft. that before the hip arrived at New Orleans, fhe, together with the goods, by the barratry of the faid Jofeph, he being master of the faid ship, was run away with and wholly loft to the plaintiff. 2d Count, a lofs by the perils of the fea.

CASE.

The Live Oak was put up by Jofeph Rati, who acted as mafter, as a general hip, in Jamaica, and the plaintiff, amongst other perfons, fhipped the goods in queftion, which were flour and other dry goods, on board her. She failed on the voyage, infured in May, 1783, and arrived in June following at the mouth of the river Miffiffipi, which leads up to New Orleans in Spanish America, at the diftance of about 35 leagues. When the Captain had got thus far, he dropped

anchor,

anchor, and went in his boat up the river to New Orleans; and on his return, without carrying the ship to her port of destination, flood away for the Havannah; after his departure, from whence, he was never afterwards heard of. It appeared that he had a private adventure of negroes of his own on board, which there was reasonable evidence for fuppofing he intended to have disposed of at New Orleans; but finding it difficult to do so on account of an interdiction against the importation of them by the Spanish government, he went to the Havannah in queft of a market for them. Several letters were agreed to be received in evidence which paffed between the plaintiff and his correfpondents, from whence it appeared, that they had made every inquiry concerning Rati, but without fuccefs: and there was ground for believing that the veffel was afterwards loft. In thefe letters he was mentioned as the mafter of the veffel, and treated as one who had run away with the cargo; but whether he, or what other person, were owner of the fhip, did not appear. The defendant, upon the trial, offered no evidence; but contended, that upon the plaintiff's own fhewing he could not recover; for, as to the second count, the under-writer was discharged, there having been a clear deviation proved from the voyage infured, which was admitted. And as to the first count, there was no evidence of the Captain's having been guilty of barratry; for non conftat that he was not owner or general freighter of the ship himself, or, if he were not, that he had acted contrary to the directions of the owner in going out of his original courfe; in either of which events he could not be guilty of barratry. But, admitting the evidence to be fufficient for that purpose, it was contended, that there had been a previous deviation before the barratrous intention took effect. But Lord Kenyon, who tried the Caufe, being of opinion that the plaintiff was entitled to recover on the first count, the Jury found accordingly. This was a motion to fet afide the verdict and grant a new trial.

LORD KENYON, Ch. J.-The conclufion which the Jury have drawn by their verdict is, that this was barratry; and the queftion now is, Whether the evidence be fufficient to fupport that conclufion? The first point to be confidered is, Whether Rati can be taken to be the owner of the fhip? Now as to that, he was clearly proved to be the captain; but there was no proof whatever of his being owner. And if that fact were neceffary to conftitute the defence of the under-writer, the affirmative proof lay upon him. If we were to infer any thing, it would be the contrary; for Rati acted as captain;

the

the letters fpeak of him as having been once before configned to the houfe of Taylor and Montford; he is therein treated as a criminal who had run away with the fhip and cargo. It is fufficient however to fay that there was no proof of his being owner. Then the next question which arifes is, Whether the fhip going out of her courfe is to be attributed to deviation or barratry? Upon this head the question was well put at the bar, When did the barratry commence? It commenced when he first went out of the due courfe of his voyage in violation of his duty; and the verdict of the Jury was founded upon that ground.

ASHHURST, J.-The question is, Whether the plaintiff's evidence were fufficient to be left to the Jury as to the barratry of the mafter? As to which, the fa&t stands fimply thus; the ship in question was put up as a general ship, of which Rati was stated to be the mafter: that primâ facie then fupposes him not to be the owner. Then the rule of evidence applies in this cafe, that the affirmative is always to be proved by those whofe intereft it is to prove it. Here it was the plaintiff's intereft to prove that Rati was the mafter, which he did accordingly; if then it were for the defendant's intereft to prove that he was alfo owner, it was incumbent on him to fhew it: but there being no evidence of that fort, the Jury did right in finding him guilty of barratry on the facts which were in evidence before them.

BULLER, J.-Barratry is a question of law, which, like other questions of law, arifes out of facts, and has been well fettled. In one sense of the word it is a deviation by the Captain for fraudulent purposes of his own; and that is the diftinction between deviation, as it is generally ufed, and barratry. Then the question is, Whether the Captain in this cafe deviated with a fraudulent view, fo as to conftitute barratry upon the evidence given in the caufe? That will depend upon two questions; First, what it is neceffary for a plaintiff to prove upon a declaration for the barratry of the Captain and, Secondly, what evidence there was in this cafe of fraud in the Captain? ft. It appeared that the ship had been put up as a general ship, ready to take the goods of any perfon to the port to which the profeffed to be deftined; the owner of goods therefore may in fuch a cafe be fuppofed, in general to be an entire ftranger to the ship; he deals with the Captain quà Captain; he knows him in no other character; he acts under the information of the advertisement which is ufually put forth on thofe occafions, wherein Rati was in the prefent instance described to be mafter. By the terms too of the policy the underwriter con

tracted

tracted to indemnify the plaintiff against the barratry of this very man. In cafe then of a lofs, what is incumbent on the plaintiff to prove? He must prove the fubfcription of the under-writer; his own interest in the goods; his shipping them on board the veffel defcribed in the policy; and the lofs of them in confequence of fuch an act by the Captain as amounts to barratry, that is, that he went out of the course of his voyage for a fraudulent purpose. It was not incumbent on the plaintiff to prove that the Capain was not the owner, for that would be calling on him to prove a negative; and if the Captain were not the owner, it is immaterial who was. Proof of that fact, which operates in dif charge of the party, lies upon him. I agree that, if the Captain had freighted the ship for the voyage, he could not be guilty of barratry; but the proof of fuch fact lies equally on the defendant. It is then asked, Why it should not be prefumed that the Captain went out of his courfe by the directions of his owner, if he had any? The reafon is plain; because the Court cannot presume fraud in another person, The cafe put of an indictment for burglary does not answer the purpose for which it was cited. For fuppofe the goods were not actually taken and carried away, obferve what would be fufficient to be proved; the fact of breaking and entering the house; and whose house it was; and that it was in the night; because all these circumstances are specifically alledged in the indictment, and they are all affirmatives; then the intent with which thefe facts were done, is equally material; but if the prosecutor prove all the former circumftances, it is a question for the Jury to determine whether he did not enter with the view of stealing the goods, unless the party accused can fhew to their fatisfaction that his intent was innocent. That brings me to the next question, which, in my opinion, is the moft material one here, namely, What was the view of the mafter when he funk his anchor at the mouth of the river Miffiffippi? for if it were done with a fraudulent view, I hold that the very finking of his anchor was an act of barratry. His intent in fo doing. was a question for the Jury, and they have found by their verdict that it was the barratrous intention charged. It appears that he had fome Negroes on board belonging to himfelf, which he wished to have difpofed of at New Orleans, but finding upon going up thither in his boat that he should not be able to do so, he returned back again to his ship, and immediately failed for another port. Then is it too much to say that he went to New Orleans for the purpose

of