
    Smith and Loring against Foltz, Survivor of Foltz and Lorens.
    Where the acceptor of a hill has a ha-on mutual between° Wm er'the'tirawer shall not make payee’s name bill which has edenforr°non-Smthere is clue'fiiom^him accep-
    CASE on a bill of exchange against the acceptor, for 0 r 118/. Boston currency. The bill was drawn by Parington &? Hussey, merchants in Boston', in favour of the plaintiffs, on Foltz &? Lorens, in Charleston. When it was presented ^or acceptance, neither Foltz nor Lorens were at home ; it was therefore accepted by Keller, their clerk, for them, On the bill becoming due, Foltz Lorens refused paying it, saying they had no effects of the drawers in their hands, and because it had been accepted inadvertently by their c^el'k. who was ignorant of that circumstance- at the time made the acceptance. The bill was accordingly sent back to Smith Loving, who returned it to the drawers, Faring-/ pn £s? Hussey, from whom they received payment.
    
      
      Fotd, for the defendant,
    stated that he had witnesses to prove the return of the bill to the drawers, and that the payee had received payment, consequently they had no right of action. That it would be unjust to allow the drawers to make use of the names of the plaintiffs to recover money from the defendant, when the plaintiffs had been paid, and when there was a balance really due from the drawers to the defendants, on a general account.
    
      Fraser objected to this evidence, as it would affect the credit of bills of exchange in the hands of fair holders. But
   The Court

ruled, that it was perfectly regular to go into the evidence, otherwise it might be so contrived, that a payee or indorsee might be paid twice. It would be manífestly unjust to permit drawers thus to make use of the name of a third person, or persons, to recover money oilt of the hands of the acceptor, at a time when they, the drawers, were in the debt of the acceptor ; because, if a suit had been brought by the drawers themselves, a discount might have been set up. Here no person is injured by permitting the testimony.

Two witnesses were then sworn, who proved the facts as stated, upon which the. defendant called for a nonsuit, as the plaintiffs could have no cause of action, which was ordered accordingly.  