recover back the amount,33 and so if such indorser pays the bill, relying on the notarial certificate of due presentment, when in fact no such presentment was made.34

§ 1227. Vouchers of payment. The party making payment should insist on the presentment of the paper by the party demanding payment, in order to make sure that it is at the time in his possession, and not outstanding in another. And if at the time he makes payment it is outstanding, and held by a bona fide holder for value, he will be liable to pay it again, and a receipt taken will be no protection.35 The party making payment of the bill or note should also not fail to insist upon its being surrendered up, as a voucher that the party receiving the money was entitled to do so, and also that he has paid it to him.36 possession of the note by the maker is presumptive evidence that he has paid it;37 and so, likewise, is the possession of the bill by the acceptor, provided it can be shown that it passed out of his

33. Milnes v. Duncan, 6 B. & C. 671.

34. Talbot v. National Bank, 129 Mass. 67.

The

35. Wheeler v. Guild, 20 Pick. 545; Davis v. Miller, 14 Gratt. 1; Wilcox v. Aultman, 64 Ga. 544; McClelland v. Bartlett, 13 Ill. App. 236; Bank of the University v. Tuck, 96 Ga. 456, 23 S. E. 467; Mulhall Bros. v. Berg, 95 Iowa, 60, 63 N. W. 573; Klindt v. Higgins, 95 Iowa, 529, 64 N. W. 414; Richards v. Waller, 49 Nebr. 639, 68 N. W. 1053; Bull v. Mitchell, 47 Nebr. 647, 66 N. W. 632; White v. Kehlor, 85 Mo. App. 557; Hefferman v. Boteler, 87 Mo. App. 316. 36. See post, § 1228; Otisfield v. Mayberry, 63 Me. 197 (1874), Appleton, C. J., saying: "The maker of a note has a right to its possession upon payment. In his hands it is evidence of such payment. In the hands of a stranger it is prima facie evidence of indebtedness. If a suit is brought it imposes upon the maker the necessity of a defense- the procurement of testimony the employment of counsel, and the delay, expense, and vexation of litigation. The possession of it by the maker is of importance to him. The conversion of it by another may become a source of indefinite injury. Accordingly it has been held in this State in Neal v. Hanson, 60 Me. 84; in Vermont in Buck v. Kent, 3 Vt. 99; Pierce v. Gilson, 9 Vt. 216, and in Spencer v. Dearth, 43 Vt. 98; and in New Hampshire in Stone v. Clough, 41 N. H. 290, that trover may be maintained by the maker against the payee for the conversion or wrongful withholding of his paid promissory note." Romero & Bayard v. Newman, 50 La. Ann. 80, 20 So. 493. See Kemble v. Logan, 79 Mo. App. 253.

37. Dugan v. United States, 3 Wheat. 172 (overruling Welch v. Lindo, 7 Cranch, 159); Norris v. Badger, 6 Cow. 449; Brinkley v. Going, 1 Breese, 288; Story on Notes, § 452; 2 Parsons on Notes and Bills, 220; Stephenson v. Richards, 45 Mo. App. 544. See Slade v. Mutrie, 156 Mass. 19, 30 N. E. 168, and cases there cited.

hands after he accepted it, though otherwise it would seem not.38

The mere production of a note by a comaker is regarded as consistent with the supposition that the payment was made jointly by him and his copromisor as with the idea that it was made solely by himself; and, therefore, it is not sufficient to entitle him to contribution.39

§ 1228. Receipts for payment. It is better also for the acceptor or maker to take a receipt for the money written upon the back of the bill or note, which at once advertises payment to every person who might subsequently come into possession of the instrument by accident or fraud; and as almost incontestable proof of the fact. And it seems that such a receipt may be claimed by the party making payment; and he is certainly entitled to demand the surrender of the instrument.41 "The acceptor paying the bill," says Lord Tenterden, "has a right to the possession of the instrument for his own security, and as his

38. Pfiel v. Vanbatenberg, 2 Campb. 439, Lord Ellenborough saying: "Show that the bills were once in circulation after being accepted, and I will presume that they got back to the acceptor's hands by his having paid them. But when he merely produces them, how do I know that they were ever in the hands of the payee, or any indorsee with his name upon them as acceptor. Prove the bills out of the plaintiff's possession accepted, and I will presume that they got back again by payment." Barring v. Clark, 19 Pick. 220; Chitty on Bills (13th Am. ed.) [*4241, 478.

39. Bates v. Cain, 70 Vt. 144, 40 Atl. 36; Mills v. Hyde, 19 Vt. 59, 46 Am. Dec. 177; Heald v. Davis, 11 Cush. 319, 59 Am. Dec. 147, contra.

40. Chitty on Bills (13th Am. ed.) [*423], 477; Story on Notes, § 422; Edwards on Bills, 576; Thompson on Bills, 265; Matter of Waite, 43 App. Div. 296, 60 N. Y. Supp. 488. Held, in this case, that where notes have been sold and a receipt given to the purchaser for his payment for them, that the burden is upon the party claiming in contradiction to the terms of the receipt, to show that the notes had not been reduced to the sum mentioned in the receipt.

41. Crandall v. Schroeppel, 1 Hun, 558, 4 Thomp. & C. 78; Davis v. Miller, 14 Gratt. 1; Moses v. True, 21 Gratt. 556; Hansard v. Robinson, 7 B. & C. 90; Otisfield v. Mayberry, 63 Me. 197; ante, § 1227; Wheeler v. Guild, 20 Pick. 545; Freeman v. Boynton, 7 Mass. 486; Best v. Crall, 23 Kan. 482; 1 Parsons on Notes and Bills, 230, note; 2 Parsons on Notes and Bills, 215; Byles on Bills (Sharswood's ed.) [*217, 218], 357, 364; Story on Notes, § 422; Thompson on Bills, 265; Edwards on Bills, 576. [It has been said otherwise in Massachusetts; a doubt has been intimated. Baker v. Wheaton, 5 Mass.

509.] Read v. Marine Bank of Buffalo, 59 Hun, 578, 13 N. Y. Supp. 855; Romero & Bayard v. Newman, 50 La. Ann. 80, 23 So. 493.

voucher and discharge pro tanto, in his account with the drawer." 42 If it remain in the hands of the holder it may prove fatal to the defendant, as in a doubtful case its possession by the plaintiff would turn the scale in his favor. But the debtor can impose no condition to his payment. And, therefore, where under the English Stamp Act it was provided that the person from whom the money is due may provide the stamp, and on payment require the receiver to give him a receipt, and pay him the amount of the stamp duty, and if the receiver refuses he becomes liable to a penalty of ten pounds, it was held, that under this statute a plea of tender was not sustained by proof that the defendant took a sum of money out of his pocket, and said to the plaintiff: "If you will give me a stamped receipt, I will pay you the money. "44 Possession of a note by the maker, or one who succeeds to his rights, raises the presumption of payment, but one that may be repelled by evidence that such possession was acquired without payment. In like manner the possession of a canceled bank check by the drawer is prima facie evidence of the payment to the drawee of the amount therein named.46

45

§ 1229. Indorser should take receipt. When an indorser makes payment it is especially desirable that he should take a receipt, as well as require delivery of the instrument;47 and in England an indorser, whose name was on. a bill which had passed to several subsequent indorsees, was nonsuited in an action upon the

42. Hansard v. Robinson, 7 B. & C. 90.

43. Brombridge v. Osborne, 1 Stark. 374; Turrentine et al. v. Grigsby, 118 Ala. 380, 20 So. 666.

"This is no

44. In Laing v. Meader, 1 Car. & P. 257, Abbott, C. J., said: proof of a tender; the offer of the money must be unconditional." 45. Potts v. Coleman, 67 Ala. 221; Lipscomb v. De Lemos, 68 Ala. 593; Hollenberg v. Lane, 47 Ark. 399; Callahan v. Bank of Kentucky, 82 Ky. 231; Tuskaloosa Oil Co. v. Perry, 85 Ala. 158; Bowman v. St. Louis Times, 87 Mo. 191; Tedens v. Schumers (due-bill), 112 Ill. 268; Turner v. Turner, 79 Cal. 566; post, § 1229; Perez v. Bank of Key West, 36 Fla. 467, 18 So. 590; First Nat. Bank v. Harris, 7 Wash. 139, 34 Pac. 466; Anniston Pipe Works v. Furnace Co., 94 Ala. 606, 10 So. 259; Smith v. Gardner et al., 36 Nebr. 741, 55 N. W. 245; Erhart v. Dietrich, 118 Mo. 418, 24 S. W. 188; Stephenson v. Richards, 45 Mo. App. 544; Grimes v. Hilleary, 150 Ill. 141, 36 N. E. 977; Griffith v. Lewin, 125 Cal. 618, 58 Pac. 205; Schwind v. Hall, 129 Cal. 40, 61 Pac. 573.

46. Peavey v. Hovey, 16 Nebr. 416; Riddle v. Russell, 108 Iowa, 591, 79 N. W. 363.

47. Story on Notes, § 452.

48

bill which he claimed to have paid because he produced no receipt and no extraneous proof of payment." But now the mere possession of the instrument would be, in such a case, sufficient evidence of payment and ground of recovery. And the presumption of payment arising from possession of the instrument may in any case be rebutted.50 If there be a general receipt of payment on the back of the instrument, it will be presumed that it was made by the maker or acceptor, who was primarily liable;51 and this presumption would exist even when the drawer had possession and sued the acceptor upon a bill indorsed with such a receipt.52 But a receipt, while it is an admission, is not so conclusive between the parties (though it is as to a third party who has acted on the faith of it) as to exclude explanation by parol evidence.53 Evidence of a party's pecuniary ability to pay for many years after judgment against him, does not tend to show that he has paid, and is considered immaterial;54 and even when coupled with proof of the pecuniary distress of the holder of a note, the pecuniary ability of the party sued has been held irrelevant, and inadmissible as tending to prove payment.55 But similar circumstances have been deemed sufficient to require proof of the holder that he gave value.56

48. Mendez v. Carreroon, 1 Ld. Raym. 742 (1701).

49. Dugan v. United States, 3 Wheat. 172; Warren v. Gilmau, 15 Me. 70; Bowie v. Duvall, 1 Gill & J. 175; Bank of Kansas City v. Mills, 24 Kan. 610; Wickersham v. Jarvis, 2 Mo. App. 280; Bond v. Storrs, 13 Conn. 412; Campbell v. Humphreys, 2 Scam. 478; Brinkley v. Going, 1 Breese, 228; Story on Notes, § 452. See vol. I, § 576, and vol. II, §§ 1198, 1230; Bobb v. Letcher, 30 Mo. App. 46; Kelly v. Forty-second St. R. Co., 37 App. Div. 500, 55 N. Y. Supp. 1096; Zimmer v. Chew, 34 App. Div. 504, 54 N. Y. Supp. 685; Spreckels v. Bender, 30 Oreg. 577, 48 Pac. 418; Johnson v. Lockhart, Admr., 20 Tex. Civ. App. 596, 50 S. W. 955.

50. Fellows v. Cress, 5 Blackf. 536; Erhart v. Dietrich, 118 Mo. 418, 24 S. W. 188.

51. Scholey v. Walsby, Peake Cas. 24; Jones v. Fort, 9 B. & C. 764. 52. Ibid.; Foerster, Succession of, 43 La. Ann. 190, 9 So. 17.

53. Scholey v. Walsby, supra; Chitty on Bills (13th Am. ed.), 478; Comptoir D'Escompte v. Duesbach, 78 Cal. 15.

54. Daby v. Ericsson, 45 N. Y. 786. 55. Alexander v. Dutcher, 7 Hun, 440. 56. Duerson v. Alsop, 27 Gratt. 229.

SECTION III.

TO WHOM PAYMENT MAY BE MADE.

§ 1230. Payment of a bill or note should be made to the legal owner or holder thereof, or some one authorized by him to receive it.57 If it be payable to bearer or indorsed in blank, any person having it in possession may be presumed to be entitled to receive payment, unless the payor have notice to the contrary;5 and a payment to such person will be valid, although he may be a thief, finder, or fraudulent holder.59

§ 1230a. Whether payment may be made to party in possession of instrument payable to order and unindorsed. If the instrument be payable to a particular party or order, and unindorsed by him, it

57. Stevenson v. Woodhull, 19 Fed. 575. Authority to sell property as agent to take a note therefor in the name of the principal, does not include authority to receive payment of the note after it has been delivered to the principal. Draper v. Rice, 56 Iowa, 114. As to the implied authority to collect money arising from the reliance of an indorsee upon the original holder, where the latter is a factor or commission merchant making advances to producers, as his agent for that purpose, see Exchange Nat. Bank v. Johnson, 30 Fed. 589. In Lester et al. v. Snyder, 12 Colo. App. 331, 55 Pac. 613, it was held, that "the fact that an agent is authorized to collect interest does not authorize him to collect the principal of the note," nor will authority "to receive payment of principal and interest authorize him to receive pay. ment before maturity so as to bind the payee." See also Barstow v. Stone, 10 Colo. App. 396, 52 Pac. 48; Sage v. Burton, 84 Hun, 267, 32 N. Y. Supp. 1122; Dodge v. Birkenfeld, 20 Mont. 115, 49 Pac. 590; Reid v. Kellogg et al., 8 S. Dak. 596, 67 N. W. 687; Cummings v. Hurd, 49 Mo. App. 139; Weldon v. Tollman, 15 C. C. A. 138, 67 Fed. 986, text cited.

58. Chappelear v. Martin, 45 Ohio St. 132, citing the text; Brennan v. Merchants' Bank, 62 Mich. 343; Samples v. Samples, 2 N. M. Ter. 239. Semble, that in an action brought on a promissory note by the holder thereof, payment of the same to a third person after he had parted with the possession thereof, is no defense to the action, even though the parties suing upon the note paid no consideration therefor, and received it after maturity. See Harpending v. Gray, 76 Hun, 351, 27 N. Y. Supp. 762; Tucker v. National Bank of Athens, 108 Ga. 446, 33 S. E. 983, 75 Am. St. Rep. 69.

59. Mauran v. Lamb, 7 Cow. 174; Bachellor v. Priest, 12 Pick. 406; Bank of the United States v. United States, 2 How. 711; Dugan v. United States, 2 Wheat. 172; Bank of Utica v. Smith, 18 Johns. 230; Adams v. Oakes, 6 Car. & P. 70; Owen v. Barrow, 4 Bos. & P. 101; Goodman v. Harvey, 4 Ad. & El. 870; Story on Bills, § 415; Story on Notes, § 454; Edwards on Bills, 537; Merritt v. New York, etc., R. Co., 14 Hun, 324; Alexander v. Rollins, 14 Mo. App. 118.