The declaration is in assumpsit and contains two counts: one on the acceptance of a bill of exchange, drawn by the plaintiff on the defendant in favor of Randolph McMillan, or order, and indorsed by him to the plaintiff, and the other on an account stated. Plea, non assumpsit; and on the trial the plaintiff proved the acceptance and rested his case; and the counsel for the defendant then insisted that the plaintiff could not recover. *Page 299 But a verdict was rendered for the amount of the bill (419) and interest, upon an agreement that judgment should be entered on it if the court should think the plaintiff entitled to recover on either count; and, if not, that the verdict should be set aside and a nonsuit entered. His Honor was afterwards of opinion that the plaintiff could not recover on the bill, but that he could on the other count. Judgment was entered accordingly, and the defendant appealed. As the bill was payable to the order of McMillan, the plaintiff could make a title to it only through his order. Indeed, the plaintiff declared as the indorsee of McMillan. The omission to prove the indorsement was, therefore, fatal to the count on the instrument.
The proof seems to be equally defective on the second count. The drawer of a bill in favor of another person has an action on him against the acceptor, upon its being returned for nonpayment; and, in such a case, the bill may be evidence upon the common counts. But when the drawer brings such an action on the bill, the declaration states not only the drawing of the bill, and its acceptance, and the nonpayment by the defendant, but also that the plaintiff thereby became liable, as drawer, and paid it. Symmond v. Parminter, 1 Wil., 185; Bayley on Bills, 392, and the cases collected in 1 Saund. Plead. Ev., 278. It is therefore indispensable on such a count to prove the payment of the bill, or, at the least, to prove the payee's name (420) in blank on the bill, as an authority to fill up a receipt to the plaintiff for its amount; for the mere possession of the bill, payable, and therefore belonging, to a third person, is not evidence that the drawer has got it up by paying it, so as to entitle him to sue on it. If a bill be payable to the drawer's own order, and he transfers it by indorsement, and afterwards becomes the holder again, he may then have an action on it, against the acceptor, because by the possession he stands,prima facie, on his original rights — like the payee of a promissory note, who loses it and gets it back again, for, by striking out the indorsements, the holder in each case has the apparent legal title. But it is otherwise between the drawer and acceptor of a bill payable to another, for the drawer has no original right to the instrument nor against the acceptor, but only the right arising out of his secondary liability in the event of nonpayment by the acceptor on due presentment. Hence, the necessity, as before mentioned, that the drawer should show such *Page 300 failure by the acceptor, and that he, the drawer, paid the money in order to entitle him to sue on the bill. Then, if the plaintiff had declared on the bill upon his own right as the drawer, instead of indorsee of the payee, he could not have recovered for want of requisite proof. The same reasons apply equally to the count on the insimul compulassent, and, indeed, to all the money counts; for the possession of the instrument — belonging upon its face to another person — is no evidence that the drawer, more than any other stranger happening to get hold of the bill, was liable on it and had been duly compelled to pay it, so as thereby to found a presumption that he had lent the acceptor money, or paid it for his use, or that they had accounted together and the acceptor been found to be the drawer's debtor to the amount of the bill. There is in that case no direct liability of the acceptor to the drawer, and, consequently, no such privity (421) as can authorize the implication of the promises supposed in the common count.
The judgment must be reversed, and judgment of nonsuit be entered, according to the agreement in the record.
PER CURIAM. Judgment accordingly.