After a continuance, for advisement, the opinion of the Court was drawn up by
Weston C. J.The amendment objected to, although in a matter of substance, was within the discretion of the Judge to grant. It introduced no new count into the declaration. The count, when amended, there is no reason to doubt, was for the same cause of action, originally intended. The date of the bill, the parties, and the time of payment, remained the same.
It is very desirable, that the law in relation to bills of exchange should be uniform through the Union. In Buckner v. Finley, 2 Peters, 586, the Supreme Court of the United States, upon full consideration, decided, that a bill of exchange drawn by a person residing in one State of the Union, upon a person residing in another, is a foreign bill. The same doctrine was laid down in the Phenix Bank v. Hussey, 12 Pick. 483. There had previously been some diversity of opinion upon this point; and there is reason to believe, from the title to the act, that such bills may have been regarded as inland, by the committee who prepared the statute of 1821, c. 88, regulating damages on bills of exchange, drawn or indorsed in this state, but payable at any other place within the United States. A similar statute, with the same title, existed in Massachusetts. Stat. of 1819, c. 166. This was not considered there, as it cannot be here, as a legislative determination of the question. The term, inland, is not to be found in the enacting part of either statute. We adopt the opinion, that the bill in question is a foreign bill; and the protest therefore was properly admissible in evidence.
The bill had been indorsed in full to Gaylord & Hathaway, and *139was protested at their request; but it might have been sent to them for collection, or in trust for the plaintiff. The return of the bill by them to the plaintiff, with the protest for non-payment, is presumptive evidence, that they acted as his agent. The same inference was drawn, from the same facts, in Dugan v. United States, 3 Wheat. 172. That was a bill which had been indorsed in full to the agents, who returned it, after causing it to be protested. Such being the presumption, the plaintiff was entitled to his action against tho acceptor, immediately upon the protest, although the bill might not have been in his actual possession.
And in our judgment, he might well bring the action as payee, disregarding, or striking off, the indorsements. The case of Dugan v. United States, before cited, is an authority in point. Livingston J. who delivered the opinion of the Court in that case, says, “ after examining the cases on this subject, which cannot all of them be reconciled, the Court is of opinion, that if any person, who indorses a bill of exchange to another, whether for value, or for the purposes of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appears in evidence, as the hona fide holder and proprietor of such bill, and shall be entitled to recover, notwitlislanding there may be on it one or more indorsements in full, subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsers, whose names he may strike from the bill, or not, as he may think proper.”
Judgment on the verdict.