delivered the opinion of the court. The case finds that the bill in question, drawn by the plaintiff, and which was payable thirty days after sight, was accepted by the defendant J une 11, 1845; that on the 14th of July following, purporting to have been indorsed by tbe payees and by other persons, it was presented to the defendant by a notary public, at the request of the holder, and payment demanded; that the defendant answered that he could not pay it then, but would within fifteen or twenty days ; whereupon it was noted and protested for non-payment, and due notice of the demand and non-payment given to the plaintiff, and to the several indorsers.
On these facts no question is raised respecting the regularity of the acceptance, the regularity of the presentment for payment, the dishonor, or the notice to the plaintiff and the indorsers. The bill was presented “ by a notary at the request of the holder, A. C. Guildermeister.” By this phraseology, in tho absence of any evidence to the contrary, it must be intended that Gtdldermeister was the rightful holder. We are not at liberty to assume that “ the holder” who caused the bill to be presented was a surreptitious bolder, or to decide this case upon the mere possibility that such might be the fact, when there is not *574the slightest evidence to support such a supposition, and when in fact no question looking to such a supposition was raised at the trial. The .answer of the defendant, when the demand was made, indicated no doubt that the presentment was well made in behalf of the true holder.
On these facts it is clear that the plaintiff became liable to “ the holder,” to take up the bill. The plaintiff could not have resisted an action against him, as the drawer of the bill, by the holder. In such action he might perhaps have required the party bringing the suit against him to prove the indorsements, in order to show that he was the holder. But the plaintiff, in the absence of any thing to lead to a doubt on the subject, might well believe that the party having the possession of the bill, and who had caused it to be presented for payment, was the lawful holder; and might pay him and take up the bill without requiring proof of the several indorsements. On the evidence in this case, G-uildermeister might have maintained trover against any one who had taken the bill from him without authority, and converted it; and the evidence upon which a court would have sustained such an action in his favor, as holder, is certainly sufficient primd facie to justify the plaintiff in dealing with him as one whose possession was evidence of title.
And the case, finding due presentment, dishonor, protest, and due notice, thus fixing the liability of the plaintiff, his possession of the bill is, in the absence of any thing to cast a suspicion upon it, sufficient evidence that he has paid the amount to the party entitled to receive it. After a promissory note has become due, the possession of it by the maker is prima facie evidence that he has paid it; the possession of it by an indorser, after dishonor and notice, evidence that he has discharged his liability to the indorsee, and thus becomes entitled to it.
Whether the drawer of a bill which has been accepted and then dishonored, may, on payment, make title to his *575own bill as indorsee of it, as any third person might do, is a question admitting of discussion, and one which need not be settled in this case. If the plaintiff’s claim to recover was in that form, he might, perhaps, be required to make the ordinary proqf of the indorsements.
But the plaintiff’s case is not that the bill was duly transferred to him by a regular course of indorsement, and that he may therefore maintain an action on the bill. It is that he drew the bill; that the defendant accepted it, which shows that he had funds of the plaintiff in his hands; that the defendant, having failed to pay, he, as drawer, became liable to pay the holder, which he has done, and that, on this evidence, he may maintain an action for money had and received by the defendant to his use.
The defendant objects (1) That the plaintiff did not prove the indorsements ; to which the answer is, that as the plaintiff does not claim to recover as indorsee, such proof is unnecessary to show a title to recover. (2) That the plaintiff did not prove that the bill was presented by J. W. Clark k Co., the payees. The answer is, that the case finds that it was presented by a notary “at the request of the holder,” which is all that is required to show a valid presentment. (3) That the plaintiff did not prove payment by himself; answer, that, being liable to pay the amount to the holder, the possession of the bill is of itself prima facie evidence of such payment.
That the drawer of an accepted bill, who, upon the subsequent dishonor of it, and due notice thereof, has paid the amount to the holder, may maintain an action upon the bill itself,, without .making title through the indorsements, is fully settled. 1 Wils. 185, Simmonds v. Parmenter; S. C., 4 Brown’s Part. Cas. 604, cited Chitty & Hulme on Bills 647; Bayley on Bills 212; 4 Bing. 390, Hubbard v. Jackson; 3 M. & S. 97, Callow v. Lawrence; Story on Bills 498; Chitty & Hulme on Bills 580; 3 M. & S. 91, Mead v. Braham.
*576There is probably some error in the statement of the reasons for the decision reported in Beck v. Robey, 1 H. Black. 89, note. The true ground for it is stated by Mr. J. Bayley, in Callow v. Lawrence, which is that the payment of the bill by the drawer struck out the indorsement. The drawer, having taken it up, was remitted to his original rights. In the case last cited it was held that the drawer of a bill, payable to his own order, and which had been indorsed by several persons, might, after taking it up, put it in circulation on his own indorsement, and that the indorser might recover of the acceptor. The indorsements made before the drawer took up the bill were stricken out.
So far, therefore, from its being necessary to prove the indorsements in the case now before the court, the plaintiff might have stricken them out before proceeding to trial.
It may be that where a bill is payable to the order of a third person, the drawer of a payment cannot put it in circulation again on his own indorsement. It would cease to be negotiable by the payment, unless the drawer could procure a new indorsement, or what was equivalent to a new indorsement, of the party to whose order it was payable, so that a title to it could be derived by subsequent parties through that indorsement. ■ But supposing that to be so, it will not serve to show that the drawer himself may not sustain an action upon it, or use it as evidence in an action for money had and received, which is all that is necessary in this case.
Mead v. Braham, 3 M. & S. 91, shows that the drawer, when he maintains an action on the bill, does not claim through the indorsements. It was there held that th© drawer of a bill, after having taken it up, might sue a bankrupt acceptor who had not obtained his certificate, although a previous holder had proved under the commission. If he had been obliged to claim through that holder, the fact that he had proved the same bill would appear to have barred the action.
*577Mr. Justice Lawrence said, in Cowley v. Dunlap, 7 D. & E. 572, that the drawer of a bill may, “ after he lias negotiated it and been obliged to pay it, maintain an action, or sue out a commission on the bill itself, just as if he had never parted with it.” Where the drawer gets back the bill, his right revives, and the bill, which is the evidence of the contract of the acceptor, proves that his undertaking was to pay a certain sum of money at a fixed time.” He expressed an opinion that the drawer was confined to his action on the bill.
But in Thompson v. Morgan, 3 Camp. 101, Lord Ellenborough, after some hesitation, admitted the bill as evidence in favor of a drawer under the count for money had and received ; and Kingman v. Hotaling, 25 Wend. 423, is directly to the same point, wfithout hesitation.
Upon these authorities the drawer who, in pursuance of his legal liability, has taken up an accepted bill, which has been dishonored on presentment for payment, stands, as regards his remedy against the acceptor, like the payee of a promissory note which he has indorsed, and afterterward taken up as indorser upon its being dishonored. The obligation of the note is not thereby discharged. He may maintain a suit to recover the amount, either upon the note itself, or on the count for money had and received. If in such a case the note had upon it several indorsements, it would be preposterous to say that in order to maintain his action the payee must prove the indorsements; for he had the right, and it would be .a proper course for him to strike them all out immediately after taking up the note from the holder. lie would merely be required to prove the making of the note, the dishonor and notice, and that he had again become the holder of it, and his possession of it would be sufficient evidence to show his title.
There must be Judgment on the verdict.