
    W. H. Macfarlan v. Levi P. Moses.
    The holder, in his action against the acceptor of a hill of exchange, failing to prove the handwriting of the first indorser, was nonsuited.
    Before Earle, J., at Charleston, Spring Term, 1839.
    This was an action on a bill of exchange, drawn at Vicksburg, by one Moore, in-favor' of Vm, J. Day, at six months, and accepted by the defendant, who, on the maturity of the acceptance, refused to pay the bill. The name of Wm. J. Day was indorsed, but there was no evidence that the in-dorsment was made by him; and the only proof offered of the plaintiff’s right to the bill was, that it had been sent by him to Charles M. Eurman, Esq., to be collected; that Mr. Eurman as agent of the plaintiff called with the bill, on the defendant, who accepted it. The defendant’s motion for a nonsuit was refused, and the jury, under the instruction of the Court, found for the plaintiff.
    See 3 Rich. 384. An.
    
    The defendant appealed, renewing his motion for a non-suit, and, in the event of that failing, moved also for a new trial, on the ground, that
    The plaintiff ought to have proved the indorsement, to establish his property in the bill.
    Phillips, for the motion;
    
      Bailey and Brewster, contra.-
   Curia, per Butler, J.

The liability of an acceptor to pay a hill drawn to order, is to be distinguished from the right of one who presents it to receive payment. When a bill is presented for acceptance, the acceptor looks alone to the handwriting of the drawer, which he cannot afterwards dispute, but the holder’s title depends on the order of the payee, and his handwriting must be proved to entitle the holder to receive payment.

In the case of Smith v. Chester, (1 T. R. 654,) it was expressly ruled/ that in an action against the acceptor of a bill of exchange, it is necessary to prove the handwriting of the first indorser, notwithstanding such indorsement was on the bill at the time it was accepted. The case in Sayer, (p. 223,) relied on by the counsel for the plaintiff in this case, in which it was supposed that Lord Mansfield had held a contrary opinion, was commented on and considered by the Court in the case of Smith v. Chester. The judges there remark that the subject had been fully discussed and the law well settled; and the uniform current of decisions has conformed to the case last quoted.

The defendant, in strictness, was entitled to a nonsuit; hut, to prevent further delay and litigation, which would be the consequences of another action, the Court has thought it advisable to grant a new trial.

Richardson, O’Neall and Earle, JJ., concurred.  