Norris v. Badger , 6 Cow. 449 ( 1826 )

Curia, per

Savage, Ch. J.

The variance between the endorsement stated in the bill of particulars, and that filled up and used on the trial, was immaterial. The blank endorsement mentioned in the bill, imported as much as if the formal words had been written over it. It is enough* that the bill and the proof agreed in substance. Beside, the note and endorsement were specially set forth in the declaration. There w as no need of particulars as to these. It was necessary under the money counts only, which may be laid cut of view'.

There is no doubt, the evidence of incumbrances was admissible. It went directly to the sufficiency of the property to satisfy the judgment.

The principal question is, whether the plaintiff was bound to show actual payment of the note, beside what was to be inferred from the fact of its being in his possession. In Mendez v. Carreroon, (1 Ld. Raym. 742,) it was decided, that in an action on a bill of exchange, brought by an endorser who had been sued upon it, against the acceptor, the plaintiff must prove that he had paid the party who sued him.

In Welch v. Lindo, (7 Cranch, 159,) it was held that the mere possession of a promissory note, by an en-dorsee who had endorsed it to another, is not sufficient evidence of his right of action against his endorser, without a reassignment or receipt from the last endorsee. But the same court who decided this case, afterwards, in Dugan v. The United States, (3 Wheat. 173, 183,) held, that “ if a person who endorses a bill to another, whether for value or for the purpose of collection, comes again to the possession thereof, he is to be regarded, unless the contrary appears in evidence, as the bona fide holder and proprietor of such bill ; and shall be entitled to recover thereon, notwithstanding there may be on it one or more endorsements in full, subsequent to the endorsement to him, without producing any receipt or endorsement back to him from either of such endorsees, whose names he may strike from the bill or not, as he thinks proper.” The principle of this case is so precisely applicable, that I need cite no other, if it is to be received as authority. The same principle will be found running through a series of decisions in this court. (3 John. Cas. 263. 11 John. 53. 16 id. 73. 1 Cowen, 387. Vid. also 17 Mass. Rep. 618. Chit, on Bills. 190. Phil. ed. 1821.)

The judge erred in receiving parol evidence of the amount of incumbrances ; and this would be cause for a new trial, had it not been immediately shown by proper documentary evidence, viz, exemplifications, &c. that the older liens on Gumaer's property, greatly exceeded its value. The parol evidence was unnecessary, therefore. The verdict was fully sustained without it. Its admission might be error, had it been possible that the jury placed any reliance upon it, or could have been misled by it ; (16 John. 92; 3 Cowen, 621;) and then, this being on bill of exceptions, there should be a new trial, because the judgment we render might be reversed on error, which it is the object of this motion to guard against. Going into the documental proof, was equivalent to a waiver of the parol evidence, which takes away the error. (16 John. 92.) It could not possibly have any effect ; and tbe point, we think, cannot be regarded on writ of error. The motion for a new trial must, therefore, be denied.

New trial denied,