2 U.S. 144 (1792)

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GORGERAT v. MCCARTY, 2 U.S. 144 (1792)

2 U.S. 144 (Dall.)

Gorgerat et al.

Supreme Court of Pennsylvania

January Term, 1792

This was an action brought by the indorsors, the payees against the acceptor of a Bill of Exchange; which was drawn in France, and had been several times indorsed, and judgment was confessed by the defendant, subject to the opinion of the Court,-whether possession of the bill and protest was sufficient evidence, without further proof, that the plaintiffs had paid the subsequent indorsee? Or, was prima facie evidence of such payment, sufficient, unless contrary evidence was produced, on the part of the defendant? The cause was argued on the 15th September, 1791, by Rawle and Duponceau, for the plaintiffs, and by Ingersoll for the defendant.

For the plaintiffs it was urged, that upon general principles, the possession of the bill and protest, in this country, as well as in England, is sufficient evidence of the property; that the bill, however, was a French bill, and in France, the possession would be deemed conclusive. Ordon. Louis 14. Act. 11; and that the objection was too late after a judgment confessed, when the matter must be treated as if before a Jury of Inquiry. Lovelace 154. 278. In mercantile cases a greater latitude of evidence is always admitted, than in cases of any other description. Thus, the protest of a bill is sufficient proof of a demand of payment. If, indeed, the possession of a foreign bill is not regarded as the best evidence of the plaintiff's property, the resulting inconveniences to commerce would be injurious in the highest degree. Commissions must issue in every action on a bill of exchange, to establish payments in every different place, in which the different indorsees may chance to reside. It is true, that there is no authoritative precedent; for, the case in Ld. Raym. 742, is a mere loose note, made on the report of a few merchants, and the decision (which clearly proves too much, if any thing, to wit, that the receipt ought to be on the protest) may have been given under circumstances of suspicion; but the

Page 2 U.S. 144, 145

universal silence on the subject, strengthens the principle that arises from the spirit of commercial negociation, and public convenience. The defendant's contract is to pay the amount of the bill to the payee, or any subsequent indorsee. There is internal evidence in the bill itself, that it had passed into the hands of the different indorsees; and, therefore, the plaintiff's recovering the possession, affords a strong presumption of their having paid a valuable consideration for it; and fraud ought not to be inferred. The original parties to a bill are the drawer and payee; but an indorsor engages in the transaction, perhaps, without their knowledge or consent; and, consequently, less evidence should be required from the payee, than from the indorsor. But the possession of the bill and protest is evidence of an authority to demand its contents. 1 Dall. Rep. 193: It is prima facie evidence of property; and, as such, must be conclusive until it is contradicted. 5 Burr. 2688.

For the Defendant, it was answered, that in this action the declaration must state, that the plaintiffs had paid the indorsee, nor would the omission to do so, be cured by a verdict. Doug. 617. If it is material to alledge the fact, it must be material to prove it; and the general rule is, that the party must produce the best evidence in his power. The possession of the bill and protest is merely presumptive; and, from the very nature of the transaction, better proof must be in the power of the party. Even the acknowledgement of the obligor will not be received to prove his own bond; the attesting witnesses must be examined. In Ld. Raym. 742 the case occurred; and it was there decided, that possession of the bill and protest was not sufficient, without producing a receipt from the subsequent indorsee; and this rule not only remains uncontradicted, but is recognized, in Lovelas, 177, where the author describes the proof to be given in an action like the present. With respect to the argument arising from the place where the bill was drawn, it is enough to observe, that though the lex loci may regulate the nature of the contract, it cannot prescribe the nature of the evidence to be produced in our Courts in support of it.

The Judges now (Jan. 1792) delivered their opinions seriatim as follows:

Bradford, Justice.

This is an action brought against the acceptor of a bill of exchange, which had been several times specially indorsed, and the plaintiffs are the first of those indorsors. At the trial the plaintiffs gave no direct proof of payment to the last indorsee, insisting that possession of the bill and protest was sufficient, or at least prima facie evidence of it. Whether it be so, or not, is the point in question.

It seems to be fully settled in Death versus Serwonters (a) [2 U.S. 144, 146]

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