[Alabama National Bank v. Rivers.] payment and notice of dishonor, in order to charge such indorser these prerequisites to his liability must be proven.-Marks v. First Nat. Bank, 79 Ala. 562. When the indorsement is on a foreign bill of exchange, protest also is necessary to fix the indorser's liability. But it is well settled doctrine that if the indorser of a bill or note, with knowledge that the usual steps of demand, protest and notice have not been taken, promise to pay, this, without more, fixes his liability to the same extent as if there had been no laches on the part of the holder. Bolling v. McKenzie, 89 Ala. 475; Kennon v. McRae, 7 Port. 175; 3 Rand. Com. Paper, § 1370 et seq.; 2 Dan. Neg. Instr., § 1147. And facts which excuse demand and notice, or operate as a waiver of laches in respect to them, will, in law, be deemed proof of such demand and notice, and allegations of these facts may, therefore, be proved by showing a waiver of them.-Manning v. Maroney, 87 Ala. 567. It was furthermore held by this court at an early day, that a promise to pay or acknowledgment such as shows that the indorser assumes a liability, will cast upon him the double burden of proving laches and that he was ignorant of it.-Kennon v. McRae, 7 Port. 175. There is evidence tending to show that on the second or fourth day after the plaintiff had mailed the draft to the National City Bank for collection, the cashier notified defendant of the forgery, and the defendant told him "to rest easy; that we [the bank] would not lose a cent by it; to give him time;" and that subsequently Rivers wrote to the bank "agreeing to pay the money." The defendant testified that the cashier on one occasion told him that if the plaintiff had to pay, it would look to him for reimbursement, and he replied, "Mr. Urquhart, if I have to pay it, it will be mighty hard; but if I have to pay it I will do it." This was sufficient evidence of a promise to pay to require the submission to the jury of the question of laches in respect to presentment and notice. It is not necessary, in view of this evidence of a promise to pay, to decide whether protest of the draft was necessary in order to charge the defendant, since protest is in general excused, or laches in respect to it waived, by whatever will excuse, or amount to a waiver of, notice of dishonor.-Manning v. Maroney, supra; 3 Rand. Com. Paper, § 1148. Hence, if necessary in this case, the [Alabama National Bank v. Rivers.] question whether defendant had waived the laches was for the jury to determine. The general charge could not, therefore, have been predicated on the want of evidence of demand, protest or notice of dishonor. Nor could it have been properly based on any want of consideration to support the contract of indorsement. It was not necessary that any consideration should have moved directly to the defendant. The consideration moving to Gellhorn, the payee, was sufficient to uphold not only his promise, but also the contemporaneous contract of the indorser.-Marks v. First Nat. Bank, supra. There remains to be considered, then, only the question, whether the evidence that the draft had been paid by the drawee was so undisputed as to justify the general charge. The testimony as to what occurred in New York at the time of and subsequent to the presentment of the draft to the drawee is very meager, and leaves to inference many facts which it was certainly in the power of the plaintiff to prove by positive evidence. It appears from the testimony of plaintiff's cashier that when the draft was sent by plaintiff to its correspondent, the National City Bank of New York, for collection, the amount thereof was entered to its credit in that bank, and that a week or ten days afterwards it "came back unpaid." When asked directly whether plaintiff was charged with the amount credited to it, he only replied, "The check came back to us, and when it is returned it means it is unpaid." The cashier also testified that "it is the custom of banks in returning or sending back a check to charge it to your account when it is returned to you. It is the custom of banks to return refused checks." The draft, when offered in evidence, had stamped on the back, "Note teller. PAID. Feb. 27, 1892. National City Bank, N. Y.," with pen and ink marks drawn through the words, and there was a peculiar cutting of the paper in the manner usually employed by the drawee bank to cancel a paid draft. Whether the draft was actually presented to the drawee and payment refused, or whether payment was made to the National City Bank and afterwards refunded upon the discovery of the forgery and charged back to the plaintiff, does not appear by positive testimony, but must be inferred, if found, from the facts stated and the fact of [Alabama National Bank v. Rivers.] the possession of the draft by the plaintiff. Conceding the defendant's theory that the draft was actually presented and paid, we think the above testimony, aided by certain presumptions which the law indulges from the facts stated, was sufficient to raise an issue of fact as to the payment that should have been submitted to the jury. As between the drawee, the National Park Bank, and the National City Bank, holding the draft for collection as the plaintiff's agent, if the former in fact paid the draft to the latter, the payment, assuming the draft to have been raised as alleged, would be treated in law as made under a mistake of fact, and if the latter had not in fact paid the money over to the plaintiff, but had merely credited its account with the amount, it could have been compelled to refund the money to the drawee, and having refunded it, could have charged back to plaintiff the amount credited.—Birmingham Nat. Bank v. Bradley, 103 Ala. 119; National Park Bank v. Seaboard Bank, 114 N. Y. 28; United States Nat. Bank v. Nat. Park Bank, 129 N. Y. 647; 3 Rand. Com. Paper, § 1486. And whatever it could have been legally compelled to do, it had the right to do without awaiting compulsion. In the ordinary course of banking business, the draft, having been paid, would have been surrendered to the drawee. But we find it in the possession of the plaintiff, stamped paid, not by the drawee, but by the plaintiff's agent for its collection, and mutilated in the manner employed by the drawee to cancel paid drafts. What inferences and legal presumptions arise from these facts? It is well settled that if a note or bill is found in the possession of one who appears to have previously transferred it, the legal presumption is that it has been regularly returned to him and that the title is in him, and the burden of showing the contrary is on the defendant.-Anniston Pipe Works v. Mary Pratt Furnace. Co., 94 Ala. 607; Price v. Lavender, 38 Ala. 391; Herndon v. Taylor, 6 Ala. 461. Conceding that the drawee paid the draft upon presentment, it could not have been regularly returned to the plaintiff, and the title could not be in the latter, in the ordinary course of business, unless upon the discovery of the forgery, the National City Bank had refunded the money to the drawee, received the draft in return, charged back to plaintiff the amount credited, and returned the draft to [Alabama National Bank v. Rivers.] it. The just inference from the facts proven, aided by the legal presumption, is that all these things were done. In the absence, therefore, of proof sufficient to overcome the inference and presumption, the case presented is not different in any respect from what it would have been if the plaintiff had presented the draft directly to the drawee and payment had been refused. It follows that there was sufficient evidence of presentment, nonpayment, protest, if protest was necessary, and notice of dishonor, to justify the submission of these issues to the jury, and that the court below erred in giving the general charge in favor of the defendant. But we are of the opinion that the evidence would not justify a recovery on the common counts for money had and received and money paid. Rivers is not shown to have had any beneficial interest in the draft, as contended by counsel, and no part of the proceeds of the draft was paid to him by the bank. He was simply a creditor of Gellhorn, having loaned him money and taken mortgages and indorsed notes as security, and was innocent of any connection with, or complicity in, the forgery and fraud practiced by Gellhorn. When the latter received the money on the draft, he paid to the defendant the amount due him-seven hundred and fifteen dollars-taking a receipt in full discharging the indebtedness. The fact that Rivers knew the money was part of the proceeds of the draft, and that it was paid immediately after the cashing of the draft, is of no importance, when it is shown that he had no knowledge that the draft had been raised, and that upon the payment by Gellhorn of his debt, he discharged the same and surrendered the securities held by him. No greater reason can exist for holding him liable for money had and received, or money paid to the extent of the seven hundred and fifteen dollars paid to him by Gellhorn, than would have existed if, instead of being paid directly by Gellhorn, the money had passed through a dozen hands and then been paid to him by an entire stranger to the transaction. His liability is strictly that of an indorser, and not that of one to whom money has been paid under a mistake of fact. The inquiry in the 16th cross-interrogatory to A. W. Hill, as to who was the cashier and assistant cashier of the Gate City National Bank, the drawer, at the time [Malone, Admr. v. Arends.] the draft was issued, was irrelevant, and the answer was calculated to work injury to the plaintiff, in the minds of any of the jury who may have known the history of the assistant cashier's connection with that bank. It does not appear, however, when the objection to the question was made, and the court can not, therefore, be put in error for overruling the objection. Inasmuch as the question itself was illegal, the objection, if not made until the deposition was read to the jury, was properly overruled.-L. & N. R. R. Co. v. Hall, 91 Ala. 112. In view of the issues on which the case was tried, it was competent to inquire by whom the defendant was asked to indorse the draft. The cashier of plaintiff having testified that defendant had written to plaintiff promising to pay, and the letter not having been produced, it was clearly permissible for the defendant to deny that he had so written. That part of the proceeds of the draft which was paid by Gellhorn to defendant, having been paid to discharge an indebtedness due from the former to the latter, evidence was properly admitted to show that the notes evidencing the indebtedness were secured by the indorsement of a third person, since it tended to strengthen the testimony that defendant gave value for the money paid him. Let the judgment be reversed, and the cause remanded for further proceedings in conformity to this opinion. Reversed and remanded. Malone, Admr. v. Arends. Statutory Action of Ejectment. 116 19 127 464 116 19 1. Ejectment; title by adverse possession; proceedings in former suit of 143 344 ejectment, inadmissible to show estoppel.-In a statutory action of ejectment where the defendant pleads the general issue and the statute of limitations of ten years, and suggests three years adverse possession and permanent improvements, the plaintiff can not, for the purpose of estopping the defendant from claiming to have been in adverse possession at the time of a former suit in ejectment to recover the same property, introduce in evidence the record and pleadings in the former action of ejectment brought by the present defendant against the present plaintiff. |