
    CHARLESTON,
    
      January Term, 1814.
    Richard Dixon vs. John Haslett.
    The au>^ anag?nt mercantile doaway sjtyofludi p«>of.
   Smith, J.

This was an action of assumpsit on three bills of exchange for four hundred pounds each. They were drawn by defendant to the order of Captain Neil McNeill, and endorsed by him to plaintiff, a merchant in Liverpool. These bills have been regularly protested for non-acceptance and for non-payment. Mr. Leeffe proved that the defendant acknowledged this fact to him, and shewed him a bundle of papers, in which he said the protests Were; and also acknowledged that he had due notice of the non-acceptance and non-payment. The defence set up was, that he, the defendant, had paid the bills to Mr. Mason, the agent of Captain McNeill; but Mason, who was sworn and examined, said that he had received no authority from the plaintiff to settle these bills, but he had conceived that Captain McNeill had obtained authority to settle them: and, under this impression, he had settled these bills, together with others, with defendant. The presiding judge charged the jury, that according to the principles of the common law, there was no proof of any power from the plaintiff to Mason to settle these bills, but agreeably to the liberal principles of mercantile law, they might from the evidence presume one. I cannot concur in that opinion. No legal presumption ought to be raised, Un^ess ^ is 0n some ground to support it. In this case Mason had neither written nor verbal authority to settle the bills in question. There was no evidence of any silent acquiescence on the part of the v x * plaintiff, that he should make such a settlement. No evidence that he had been in the habit of settling and adjusting transactions of this, or any other description, for the plaintiff. The bills themselves were not in his possession: then, for the jury to presume an authority in him to settle without one circumstance to warrant it, would be stretching the doctrine of presumption too much by far. Without that, I think the evidence was all on the side of the plaintiff, and that he proved all that was necessary to the support of his action; and that the jury, instead of finding one cent for plaintiff, which is itself an evidence of great error in them, ought to have found the whole demand, or at least two of the bills. I am, therefore, for a new trial.

Justices Cglcqck, Nott and Gkim-ke concurred.  