¶1The acceptor of a bill of exchange r.x.gg L only to indorsee; dorsers have parted with their interest in it, and are presumed to have received a valuable consideration for it, and therefore can have no right to the money a second time. But if the last indorsee protests the bill for non-payment, and afterwards receives back the money from a prior indorser, such indorser acquires a new title to receive the money from the acceptor, by such payment. So that at the time this action was commenced, the defendant was liable to no person blit the last in-dorsee, or the prior indorser who had paid him. This is by the custom of merchants, as appears by the case of Death v. Serweuters. Eutw. 888. Lewin v. Brunette. Eutw. 898. The plaintiffs have accordingly alleged that they paid the subsequent indorsee, but offered no proof of it except the mere production of the bills and protests. This is not sufficient; they should have produced a receipt from the last in-dorsee, or some witness or evidence of payment. The usual evidence in such a case is a receipt at the foot of the protest. 1 Eord Raym. 742. In that case, the merchants who had been sworn respecting the custom, were of opinion that this was the only evidence; but I agree with Eord Holt, that if payment be any way sufficiently proved, it is sufficient.
¶2If the defendant should pay the plaintiffs the amount of the bill, and the last indorsee should hereafter sue him, what can prevent him from recovering the money? The defendant cannot prove, that he had been paid by the plaintiffs, who may have come to the possession of the bills by trover, bailment for a special purpose, or by fraud. Why was not the action brought in the name of the last indorsee? If it had, the holding of the bills might have raised a presumption that the plaintiffs were agents for him. The case in 1 Eord Raym. 742, is in point. There the plaintiff not only had possession of the bill, but he had been sued by the subsequent indorsee and had a judgment against him. What might be admitted as prima facie evidence in other cases, will not do in such a case as this, by reason that the custom among merchants is otherwise, which appears from all the writers and collectors of cases from the report by Eord Raymond until the present time, to be considered as the rule. I am therefore of opinion with the defendant.