The question which is supposed to arise from the circumstance of the acceptor and last endorser being one and the same person, is not shown in the declaration, as the sameness of the name is not sufficient to warrant the legal conclusion of identity ; therefore, the demurrer was properly overruled, without the consideration of this point.
The evidence before the jury did not prove, nor tend to prove the payment of the bill by any person, but if it Was paid by the acceptor, and afterwards put in circulation by him, it would not be with him to insist on such a defence. By putting it in circulation, he admitted, and, in effect said, to every holder, that it was a subsisting bill, and the legal presumption arising from his aet, would warrant any other inference than that of payment.
The County court was therefore right in refusing to give the charge asked for, and in relation to that after-wards given, it is sufficient to say, that we do not conceive ourselves called on to examine its correctness. If admitted to be erroneous, — and such it was unquestionably, when considered as ascertaining a rule for the decision of other cases, — it could, by no possibility, have prejudiced the defendant, as there was no evidence before the jury, to impair, in the least, the plaintiff’s right *465to a recovery. To determine so grave a question as the one which might arise on this bill, if any other of the parties to it was the defendant, would be to pre-judge the case, without any sufficient warrant from the facts in evidence.
No error was committed by the County court, to the .prejudice of the defendant below, — and the judgment is affirmed.