Rivers v. Loving , 1 Stew. 395 ( 1828 )

JUDGE TAYLOR

delivered the opinion of the Court.

It has before been decided by this Court, that although the writ be executed only on one of two or more defendants, yet if there is a general appearance and plea for all, a judgement against all is well taken. The appearance here was for the defendant, without distinguishing which of those decía)ed against was intended. Ike cannot suppose it was for both, and as one had been served with pro-cesSi) the only correct inference seems to be, . it was he alone who answered ; and so the counsel o. noth sides seem to have understood it, as the bill' of exceptions states (_-]ie case t0 he between the plaintiff and Eldridgc K. Rivers. There was error therefore in rendering judgement against both the obligors.

It is believed the second assignment is also well taken. Had the instrument sued on here been a bill of exchange, the decision of the Circuit Court would have been right. It is laid down in 1 Wheaton’s Selwyn 104, that “ the mere production of a bill of exchange from the custody of the acceptor, is not presumptive evidence of pay ment, unless it be shewn that the bill was once in circulation after being accepted. Nor is payment to be presumed from a receipt endorsed on the bill, unless it can be shewn tbal the receipt is in the hand writing of a person entitled to demand payment.” These decisions are in perfect consistence with justice, but they arise from those peculiar features in bills of exchange, which distinguish them from deeds and promissory' notes, although the acceptor is she payror of the bill, yet it never reaches his hands until after it has been in those of the payee. It is the uniform course with merchants to leave a bill in the hands of the drawee, a sufficient time for him to ascertain the state of t.he accounts between him and the drawer, and whether he has funds of the drawers in hands or not; and no bill is protested until the drawee has had sufficient time allowed him for this purpose, unless he dishonors the'bill when it is first pensented, which is seldom done. The acceptor then always has the possession of the bill before it is put into circulation, and therefore such possession or a credit on the bill in his hand writing, raises no presumption in his favor. But if it appears that the bill has been in circulation after acceptance, then the possession of the acceptor, or a payment endorsed by him alter it has been so in circulation, is prima facie evidence in his fav or.

The analogy between a promissory note and bill, does not strictly commence until the bill 'has been accepted. The promissory note does not, in the course of business, ever go into the hands of the drawee after it is executed until it is paid. His having the possession of the note then, is piima facie evidence that he has paid it A credit endorsed on it in his hand writing, must be presumed to have been placed there with the consent of the pavee. The instrument sued on, is in all these respects, precisely analogous to a promissory note. Its having been in the possession of one of the obligors, is evidence until the contráry appears, that he had been constituted the agent of the obligee to collect the money. It is highly probable from the consideration expressed in the face of the instrument, and in the order in which the names of the obligors are signed to it, that Eldridge K Rivers was the hirer of the negroes, and Robert Rivers his security for the payment of the' m mev. _ If this was the case, there is nothing extraordinary in the bond being placed in the hands of the security to collect the money, which he was so directly interested in the payment of, by the principal.

The judgement must be reversed, and the cause remanded.

Judge White not sitting.