Macfarlane v. Moses , 25 S.C.L. 54 ( 1840 )

Curia, per

Butler, J.

The liability of an acceptor to pay a bill drawn to order, is to be distinguished from the right of one who presents it to receive payment. When a bill is presented for acceptance, the acceptor looks alone to the handwriting of the drawer, which he cannot afterwards dispute, but the holder’s title depends on the order of the payee, and his handwriting must be proved to entitle the holder to receive payment.

In the case of Smith vs. Chester, (1 T. R. 654,) it was expressly ruled, that in an action against the acceptor of a bill of exchange, it is necessary to prove the handwriting of the first indorser, notwithstanding such indorsement was on the bill at the time it was accepted. The case in Sayer, (p. 223,) relied on by the counsel for the plaintiff in this case, in which it was supposed that Lord Mansfield had held a contrary opinion, was commented on and considered by the Court in the case of Smith vs. Chester. The Judges there remark that the subject had been fully discussed and the law well settled; and the uniform current of decisions has conformed to the case last quoted.

The defendant, in strictness, was entitled to a non-suit; but, to prevent further delay and litigation, which would be the consequences of another action, the Court has thought it advisable to grant a new trial.

Richardson, O’Neall and Earle, JJ. concurred.