Smith v. Prescott , 17 Me. 277 ( 1840 )

The opinion of the Court was by

Weston C. J.

The regular and usual evidence of the transfer by indorsement of a negotiable note is, by proof of the handwriting of the indorser. This mode of proof is uniformly received in practice. That the indorser should be called for this purpose, as higher and better evidence, is a position not supported by authority, and is clearly at variance with former precedents. Besides, in this case the indorser had an interest against the plaintiff, which he was not obliged to waive.

If the plaintiff recovers, the indorser will he legally bound to refund what the defendant has paid to him on account of the note. But if his testimony defeats the title of the’ plaintiff, by showing that the indorsement is a forgery, the payment made by the defendant will be available to discharge the note, and the defendant will have no claim against the indorser. The direct effect therefore of his testimony would be, to discharge one liability, without creating another to balance it. The plaintiff would not in that case be concluded by the verdict. He might sustain an action against the indorser, if he could prove his handwriting. That is a contingent consequence, depending upon a subsequent verdict and judgment. The indorser is however, where a prior judgment is relied upon, a competent witness to prove the time of his indorsement. Let that fact be established as. it may, his interest is balanced. He is answerable in any event. Thé effect of his testimony, if taker! to be true, is to relieve him from liability to one party while it renders him liable to the other. Here his interest is against the fact of the indorsement; for if disproved,- his right- to have received and to retain the defendant’s money is established; while assuming the truth of his testimony, the plaintiff would have no claim whatever against him.-

The jury being satisfied of the indorsement, from proof of the handwriting- of the indorser, and it not appearing to have been done after the note became due, the plaintiff must be taken to be aIona fide bolder. And in order to let in the defence of payment to the indorser, the payee, the burthen of proof is upon the defendant to show, that it was subsequently indorsed. This has been' expressly held in the cases cited for the plaintiff; and we have been referred to no conflicting decisions. The forbearance of the plaintiff does not change the burthen of proof. It furnished an argument only, to be thrown into the scale, if there had been-any proof tending, to show a- subsequent indorsement.

Exceptions overruleds