1822.

Green

Watkins.

of law, stated in the record. To those questions, in the form in which they were stated, and to those questions only, could the opinion of this Court properly extend. In answer to the fifth question, which involved the inquiry, whether actual seisin, or, as it is commonly expressed, seisin in deed, is necessary to maintain a writ of right, and whether a patent from the State, of its vacant lands, conferred, by construction of law, a seisin in deed to the grantee, this Court expressed an unhesitating opinion in the affirmative on both points. It follows, therefore, by necessary inference from this doctrine, that the tenant may disprove the demandant's seisin in deed by any evidence competent for this purpose; and if he succeeds in establishing the fact, the demandant must fail in his suit. That the proof of a prior parent of the same lands to another person would be sufficient for this purpose, in a case where the demandant relied exclusively upon a constructive seisin in deed, in virtue of the grant of his patent, has been already asserted. The eighth question propounded to the Court, in Green v. Liter, is that, however, upon which the difficulty at the bar has arisen. It is in these words: "Can the defendant defend himself by an older and better existing title than the demandants in a third person ?". Now, it is material to consider, that this question does not purport to inquire whether the tenant may disprove the defendant's seisin in a writ of right; nor does it purport to inquire whether the tenant may not show that the demandant has no title, or a title defective in point of legal operation. It supposes that the demandant has a

title per se, sufficient for a recovery, and then asks if a better title may be shown in a third person to defeat such recovery. The answer of the Court is in the following words: "We are of opinion that a better subsisting adverse title in a third person is no defence in a writ of right. That writ brings into controversy only the mere rights of the parties to the suit." It is most manifest, that in this answer the Court proceed upon the supposition that the demandant has, prima facie, a good title, upon which he may maintain his suit; and that he has established a seisin sufficient, in point of law, to entitle him to a recovery. And the point then is, whether a superior adverse title and seisin in a stranger can be given in evidence to dispute such recovery. The very reason assigned against the admission of such evidence shows the understanding of the Court to be precisely what we now assert. It cannot be admitted, because a writ of right does not bring into controversy the right of the demandant as against all the world, but the mere right of the parties to the suit. But it does bring into controversy the mere right between these parties; and if so, it, by consequence, authorizes either party to establish, by evidence, that the other has no. right whatsoever in the demanded premises; or that his mere right is inferior to that set up against him.

If, in the case at bar, the demandant had established an actual seisin by occupation of the land, and taking the esplees, the case would then have presented precisely the point which was understood to be presented in Green v. Liter; and from the opinion

1822.

Green

V.

Watkins.

1822.

Green

V.

Watkins.

given in that case, on that point, there is not the slightest inclination in this Court to depart. We think that the decision in the present case may well be made upon the principles which have been already expounded, without, in any degree, breaking in upon the doctrines of that case.

If we are right in this view of the subject, it is unnecessary to enter into a minute examination of the points made in the Court below, since the evidence which was objected to, was, under the circumstances of the case, clearly admissible, for the purpose of disproving the seisin of the demandant.

As to the instructions prayed for by the demandant, in the close of the evidence, and refused by the Court, and as to the instructions actually given by the Court, to the jury, it does seem necessary to pass them in minute review. Several of them turn altogether upon the deduction of title by the tenant, from the original patentee, whose patents they set up in defence. And as to the claims, they may be disposed of by the single remark, that no error has been shown by them, in the argument here, and no error is perceived by the Court.

Judgment affirmed.

[COMMON LAW.]

PAGE'S Administrators v. THE BANK OF ALEXAN

DRIA.

A bill, or note, is prima facie evidence, under a count for money had and received, against the drawer or endorser.

But the presumption, that the contents of the bill or note have been received by the party sued, and for the use of the plaintiff, may be rebutted by circumstances; and a recovery cannot be had, in such a case, where it is proved that the money was actually received by another party.

ERROR to the Circuit Court of the District of Columbia, for the county of Alexandria. This was an action of assumpsit, brought by the defendants in error, the Bank of Alexandria, against the plaintiffs in error, the administrators of William Byrd Page, deceased. The declaration contained two counts. The first was on a promissory note, which was set forth, as made by William Hodgson, and payable on demand to the intestate, Page, who endorsed it to the Bank of Alexandria, where it was discounted, and the money paid to Hodgson. In support of this count, a note was given in evidence, drawn by Hodgson, in favour of, and endorsed by Page, payable fifty-four days after date.

The other counts were for money lent and advanced by the plaintiffs below to the intestate, Page, and for money had and received by him for their use. Evidence was also given to show, that the Bank had

1322.

Page's Administrators

v.

The Bank of
Alexandria.

1822.

V.

used due diligence in demanding payment of the maker, and in giving notice of non-payment to the Page's Administrators endorser; and that Page, in his life time, frequently The Bank of promised the Bank payment of the note, after it became due. Judgment was given for the plaintiffs below, on a demurrer to the evidence, and the cause was brought to this Court by writ of error.

Alexandria.

Feb. 8th.

Feb. 14th.

This cause was argued by Mr. Swann, and Mr. Lee, for the plaintiffs in error, and by Mr. Taylor," for the defendants in error.

Mr. Justice LIVINGSTON delivered the opinion of the Court, and after stating the case, proceeded as follows:

Whether due diligence were used by the holder of the note, is immaterial now to inquire, as this Court is of the opinion, that a note payable any number of days after date, could not be applied to a count describing it as one payable on demand.

The only remaining question is, whether this note were sufficient proof of the count for money lent and advanced, and for money had and received. There are certainly cases in which a promissory note or an endorsement of such note, may be offered in

a They cited Sheehy v. Mandeville,7 Cranch, 209. 1 H. Bl. 602. French's Adm. v. the Bank of Alex., 4 Cranch, 141. 2 H. Bl. 609. Macky v. Davis, 2 Wash. Rep. 219. Goodhall v. Stewart, 2 Hen. & Munf. 105.

b He cited Tatlock v. Harris, 3 T. R. 174. 3 Burr. 1516. 2 Wash. Rep. 233. 265. 6 Munf. 392. 5 Cranch, 144. 5 Cranch, 49., 1 Cranch, 290.