#### Strong *v.*Spear.

An indorser may sustain an action in his own name, the possession of the note being *prima facie*evidence of payment to the indorsee.

Debt, and *non est factum*pleaded: upon the trial the bond was produced, and it was endorsed with an assignment to a *Mr. McKay*— whereupon *it*was objected by the Defendant’s counsel, that the interest of this bond being in McKay, the present action by. the original obligee could not be supported ; such assignment by 1786, c. 4, Tests the whole property of the bond in the. assignee.

*Per*curiam,

this case is like that of *Smith*and *Si. Lawrence*lately decided at Hillsborough ; the bund being in the possession of the endorser, is evidence *prima facie,*that he has paid the endorsee for it. Endorsers frequently bring suit upon bills endorsed by them, when the en-dorsee is refused payment, or cannot obtain it and returns the bill, receiving pajment of the endorser himself. The case in *Show.*164, of *Dickens*v. Harriott, is very similar to the present—there a bill was drawn upon a person in Dublin, the payee endorsed to *Dickens,*and he to another, who demanded payment, and protested for non *payment*— Dickens then sued, and it was amongst other things objected, that the interest was vested in the-*245last endorsee, as appeared by the endorsement — then merchants ''ere examined, who said, whenever the bill vs- retín ned into the'possession of the last endorser, he might maintain an artion. The court recited this case upon memory only, the book not being in court — and judgment in the present case was given to the Plaintiff.

Note. — Some of the bar seemed dissatisfied with this decision, as they were with that of *Smith*and *St Lawrence a\*Hillsborough. The case oiled from Shower, says, above t-a enty rrurchants were examined, and affirmed that the Plaintiff had a right to the action, although he had endorsed to *D.*the bill being returned into his possession; but then the endorsement in that case was, pay to *I).*value on my account: perhaps this made 2). onh his servant or agent, in the same manner as if it had. bee;) pry to *I),*for my use. See 2 *Burr.*1227.— *Doug.*117, 639 The cjw of *Smith*and *St. Lawrence*was founded upon the case in *Str.*1103. Where the court permitted the Plaintiff to strike out the endorsement, but >h::i was a blank endorsement only. It was also founded in part upon 1 *Lut.*885, where the second endorser suppmted an action though there were two subsequent endorse.ments to his own appearing on the bill; but there he stated in his declaration, that the last endorsee not being able to procure pay-ment from the acceptor, he the Plaintiff, who was the second en--dorser, paid it to the last indorsee, and became again entitled to the bill. The payment was actually alledged and not denied. And in *Claxton*and *Smith,*3 *Mo.*86. 2 *Show*441, 494, the payment seems to be relied on, as that which 'entitled the endorser to the action. *Kidd.*75. Also the case in *L. Ray.*742, 743, where tile last endorsee sued the second endorser, am! recovered ; whereupon til? second endorser sued the acceptor, and u.,or. the trial produced the bill and the protest; but because he produced no receipt for the money from the last endorsee he was nonsuited, and all the court concurred — that there must be payment to revest the property of the note, strength-eiis the opinion that payment is necessary The necessity of a payment to revest the properly of the note in the endorser, must be admitted ; -nd is not denied in the c-nr-s of *Strong*and *Spear, Smith and St. Lawrence,*and *Dook*and *Caswell*—the only point of difference between these cases, and those decided in the books, is this, that the-books require actual proof of payment by a receipl, or at least *viva voce*proof. These cases allow the possession of the endorser to be presumptive evidenc of payment — as the payee or endorsee of a bill is never obliged to pari with it until he has received payment from the endorser, which is a circumstance**which renders the presumption very strong. *Kidd*88. *Beawes.*461.

Note.— *Vide*note to *Dooh*v. *Caswell, ante*18,