Hankin vs. Squires. draft is no evidence So far as the face of instruct you that the possession of this that it has been paid by the defendant. the draft is concerned, the defendant is not a party to it. It has never been accepted by him, and no liability has ever been assumed upon the face of the paper by the defendant. Before a party becomes liable upon a time draft, he must accept it. As yet it is a mere request on the defendant to pay this amount of money. He might and was at liberty to refuse to accept and throw the plaintiffs back on their original account. He has not accepted the draft in any form, and therefore I do not think the rule of law with which you are all familiar, that when you take up your promissory notes and get them it is evidence you have paid them, applies in this case, because a promissory note is a completed instrument--an obligation on the party who makes it—and when a party takes his obligation into his possession, it is at least prima facie evidence that he has paid it and is entitled to such possession. The evidence, then, as to whether this draft has been paid must rest on the testimony of the parties outside of the production of this draft by the defendant in court. In the first place, then, I will say to you that the burden of proof in this case is on the defendant. He admits the plaintiffs' case against him; he admits that he has received the goods with which they charge him, and that he at one time certainly was lawfully indebted to them for the amount of their claim, and he sets up, by way of defense, that he has paid it in this particular manner. He must make out clearly and to your satisfaction that it has been paid. Mere surmise or guess-work, and presumption not founded on well-proven facts, ought not to be indulged in. The draft in question does not bear upon its face, or any where upon it, the stamp of the bank which its officers state to you it should bear if it had been paid. This circumstance is a strong one which I commend to your consideration, as going to show, under all the testimony, that this draft has not been paid. We all understand that large moneyed institutions Hankin vs. Squires. must have a systematic way of doing business, and it is an undisputed fact by the testimony here, that whenever drafts are paid at the counter of this bank, they are invariably stamped with the stamp of the bank. The defendant claims that on the occasion he paid this tendays'-time draft he also paid a sight draft to the same bank. He produces this sight draft in evidence, and it bears a stamp showing payment. The defendant testifies that immediately on receiving his drafts, which he paid in the due course of his business, he transmitted them to a correspondent in New York, for the purpose of showing that he had paid them, and thereby showing that he was in good credit. It occurs to me that if a party wished to bolster his credit by showing that he had promptly met his drafts, even before maturity, by transmitting them to business men, that he should show they bore on their face the impress which business men would usually look for as evidence that they had been paid, and where one of these drafts was stamped and the other not, it seems to me that a shrewd business man, who was dealing honestly and wished to impress others with the conviction that he was not only honest, but able to pay his debts, would have insisted that the other draft should be similarly stamped; and if on inspection he had seen that one was stamped and the other was not, he would have returned it to the teller to whom he paid the money, for the purpose of having it stamped, so that it too might bear on its face the evidence of its being liquidated. The defendant, however, testifies that on the 14th of July, 1868, the day that he paid this sight draft, he went into the bank and paid both these drafts, and for the purpose of his defense he says that he paid the money to the teller. The teller of the bank should be as much his witness as he himself to establish this fact, and the books of the bank should also show such payment. It is in evidence before you that the books of the bank show that this money was not paid; or, rather, there is no evidence that the money was ever paid or received Hankin vs. Squires. by the bank. The evidence tends to show that the draft was handed out through the window to the defendant, for the purpose of acceptance at the time he paid the sight draft. The draft was not yet due; it had thirteen days yet to run. You are all aware that it is rather an extraordinary circumstance for a man to pay a draft of this kind thirteen days before its maturity, and you will take notice, as you have a right to do, of the fact that such a circumstance, if it occurred, would be likely to impress itself upon the agents of the bank who were charged with the duty of receiving the money on such a draft. It is true that Mr. Squires, the drawee, had a right to pay the draft when it was presented to him for acceptance, but if when it was presented to him for acceptance he had paid the money instead of accepting it, that would be a circumstance so much out of the course of business as to naturally impress itself on the memories of those concerned in the transaction; and yet the tellers who participated in the transaction, testify distinctly that the draft was not paid. The witnesses for the plaintiff, brought here on behalf of the bank, testify that there was no money paid to them; that the draft was passed out for acceptance. It is not an extraordinary circumstance for a person to whom a draft is so presented to wish to take it to his office or place of business for the purpose of comparing it with his books and determining whether it is right or not; therefore it is not very probable that the fact that the draft was not returned immediately to the window drew much attention. Verdict for plaintiffs. On motion for new trial: BLODGETT, J.-I have given this case a good deal of consideration. The authorities in this state in relation to courts charging the jury are not binding on this court. I am satisfied the court did not travel beyond the limits of the practice allowed in the federal courts. The motion for new trial is overruled. The Sam Gaty. THE SAM GATY. DISTRICT COURT.-NORTHERN DISTRICT OF ILLINOIS.-OCTO BER, 1870. IN ADMIRALTY. 1. COLLISION-RULE OF DAMAGES.-To a libel for collision, it is not a sufficient defense to set up that a sound boat would not have sustained any damage from the collision. Such allegation is mere conjecture. 2. The proper rule of damages is to allow the expense of raising the vessel and putting her in repair, with a reasonable allowance for loss of time and freight, and damage to the cargo. 3. ABANDONMENT BY OWNER.-Where the owner had, after collision, allowed the boat to lie until she became worthless, he can only recover under the above rule. He has no right to abandon the vessel and claim a total loss. 4. ESTIMATED DAMAGES.-Where, in such case, the only evidence introduced was as to the total value of the boat, the court may either allow nominal damages, or estimate them from the court's knowledge of such cases and the general facts proven. Libel by Bohan S. Sheppard, owner of the canal boat E. R. Hooper, for damages caused by a collision. The facts are stated in the opinion. Rae & Mitchell, for libellant. George Willard, for respondent. BLODGETT, J.-It appears from the pleadings and proofs in this case, that in March, 1868, the canal-boat E. R. Hooper was lying at the landing at Beardstown, on the Illinois river, next to a barge fastened to the shore, and that the steam-packet Sam Gaty, then engaged in the business of The Sam Gaty. navigating on that river, while making a landing at Beardstown, struck against the canal-boat E. R. Hooper and crowded it against the barge so as to spring off some of the planks or siding of the canal-boat on the land side of it, causing a leak whereof it sunk that night in four or five feet of water. The witnesses differ as to the degree of care and skill used by those in charge of the Sam Gaty in making the landing, those for the libellant showing that she struck hard against the canal-boat, while those for the respondent insist she did not, and that the crushing in of the side of the canal-boat was wholly due to the rottenness of its timbers, and that a sound boat would not have sustained any damage from such a collision. Whether a sound boat would have sustained any damage or not under the circumstances, is mere conjecture, and as all the witnesses agree that the steamer did strike so hard against the canal-boat as to cause it to leak at once and shortly after to sink, and it does not appear that there was any fault on the part of those in charge of the canal-boat, I am disposed to hold the steamer responsible for the damage done to the canal-boat by the collision. It is difficult for me to determine, from the evidence, the amount of that damage. The witnesses for the libellant swear it was worth from twelve hundred to fifteen hundred dollars, but, under the circumstances, I do not think its value at the time is the fair rule of damages.1 The boat had been lying at Beardstown during the preceding winter and until the time of the collision, waiting, unsuccessfully, for business after the opening of navigation, because, it is stated by the witnesses, no insurance could be effected on cargoes shipped upon it. Whether that testimony, which seems to be hearsay, is true or not, it is clear from the evidence that no effort was made to raise or repair the canal 'The Baltimore, 8 Wallace, 377. |