Rives v. Marrs

Walker, J. This was an action of assumpsit, by the holder of a bill of exchange against his immediate indorser. The payee of the bill is described in the declaration as Bartholomew Whalen, and the bill read in evidence is drawn in favor of Bart Whalen. The question then presented is, whether this was such a variance as should have excluded it. In the case of Ducommmn v. Hysinger, 14 Ill. 249, this court held that Barent and Barnard were not the same names; and in the case of Scholes v. Ackerland, 13 Ill. 650, it was held that Seymour was not the same name as Seigmúnd. There would seem to be at least as clear and distinct a difference, both in the orthography and the sound of the names in this case as in either of the others. Nor can we judicially know that the latter is a contraction of the first. ' We are unable to know that it is not a full name or the contraction of some other. If the name is correctly given in the declaration, there should have been an averment that the bill was made payable to him by the name adopted, which would have entitled the party to prove that it was a contraction of, and used for the full name. The next question is, whether the payee and first indorser was a competent witness. If the plaintiff recovered of the defendant, his immediate indorser, it would not release a prior indorser from its payment to the holder, if his judgment proved unavailing, or if the money was collected, the indorser who took up the bill, might recover of any prior indorser, notwithstanding the last holder had recovered his money. Then, whether plaintiff recovered or not, in this action, could not affect the payee’s liability. If the plaintiff recovered his money of the defendant, this indorser would be liable to him, or if the plaintiff failed in his suit, then the payee would be liable to him. He was equally liable in the one event as in the other. His interest being equally balanced, he was competent to prove a waiver of notice, payment, or any other fact which did not go to impeach the genuineness of the bill, or its discharge before or at the time he parted with it. This seems to be the doctrine of the adjudged cases of both Great Britain and of this country. Whilst there is not an entire uniformity in them, yet the preponderance Seems to be decidedly in favor of this rule. But when a prior indorser is sued by the holder, a remote indorser is held to be incompetent, as he has in that case a direct interest in the event of the suit, as by fixing the liability of a prior indorser, he thereby becomes discharged from liability on his subsequent indorsement. Hayes v. Gorham et al., 2 Scam. 429. The judgment of the court below is reversed, and the cause remanded. :. Judgment reversed,.