bills, &c.

VI. Of the loss of is, however, a proviso in the stat. 9 & 10 W. 3. c. 17. s. 3. by which it is enacted, "That in case any such "inland bill shall happen to be lost or miscarried "within the time before limited for the payment of "the same, then the drawer of the said bill is and "shall be obliged to give another bill of the same "tenor with that first given; the person to whom "they are delivered, giving security, if demanded, to "the drawer, to indemnify him against all persons "whatsoever, in case the said bills so alleged to be "lost or miscarried shall be found again." It should seem, that from the word "such," the statute does not extend to all bills of exchange, but only to the particular bills therein mentioned; namely, such as are expressed to be for value received, and payable after date'; but it has been observed, that the equity of the statute would comprehend indorsements also, and that the 3 and 4 Ann. c. 9. which gives the like remedies upon notes, as were then in use on inland bills, would extend the statute of William to notes 3.

It is perfectly clear, that in case of the loss of a bill, &c. whether before or after it was due, or when it is payable on demand, and might by possibility be in the hands of a bonâ fide holder, a Court of Equity has jurisdiction to enforce payment of the amount upon a sufficient indemnity being given, but not if it were not negotiable; and if such indemnity has been tendered, the defendant will in general have to pay the costs in equity. In a late case, proof was allowed under a

It is not unusual to declare, specially in assumpsit, for not giving a fresh bill; sed quære as to the remedy at law, post, 197, 8.

2

Sed quare see Walmsley v. Child, 1 Ves. sen. 346, 7.—Leftly v. Mills, 4 T. R. 170.-2 Campb. 215.

3 Bayl. 52.-Powell v. Monnier, 1 Atk. 613.-Kyd, 152.-Walmsley v. Child, 1 Ves. sen. 346, 7. where these acts are observed upon, 2 Campb. 215. in notes.

Walmsley v. Child, 1 Ves. sen. 338, 344.-Toulmin v. Price, 5 Ves. jun. 238.-Tercese v. Geray, Finch's Rep. 301. Vin. Ab. Bills, R.-Ex parte Greenway, 6 Ves. jun. 812.-Mossop v. Eadon, 16 Ves. jun. 430. As to the mode of proceeding in equity, 1 Ves. 341.5 Ves. jun. 338.-6 Ves. jun. 812.

bills, &c.

commission of bankrupt in respect of a bill alleged VI. Of the loss of to be lost; but the most extensive indemnity was required to be given, and to be settled by the commissioners, though the loss took place after the bill had been protested'.

When the defendant himself wrongfully withholds the bill or note, it is clear he may be sued at law 2.

But in general no action at law can be supported against a party to a bill of exchange, note, or check, indorsed in blank, so as to be transferrable to a bonâ fide holder, and lost before or on the day it is due, although a bond of indemnity has been tendered to the defendant'; and if the bill be transferrable by de

2

Ex parte Greenway, 6 Ves. jun. 812.

Smith v. McClure, 5 East. 477.-Pierson v. Hutchinson, 2 Campb. 212.-Infra, note 3.-6 Esp. 126. S. C.

3 Pierson v. Hutchinson, 2 Campb. 211.-6 Esp. Rep. 126. S. C.Powell v. Roach, 6 Esp. Rep. 76. - Bayl. 169.-Selwyn Ni. Pri. 4th

edit. 328.

"and

Pierson v. Hutchinson, 2 Campb. 211.-6 Esp. Rep. 126. S. C.This was an action by the indorsee against the acceptor of a bill of exchange. The attorney-general, in opening the plaintiff's case, stated that he should not be able to produce the bill, as it had been lost; but he should prove, that before the action was brought, the defendant had been regularly called upon for payment, and had been offered an unexceptionable indemnity. According to the usage of merchants, he was thereupon bound to honour his acceptance in the same manner as if the bill had still remained in the plaintiff's hands, and had been actually presented to him in the usual form. It is laid down by Marius, (p. 19. fol. ed.) that when an accepted bill is lost, the party to whom it is payable should notify this to the acceptor; "when the bill falls due, and the time is come for him to go for the money, the party which had accepted the bill is not freed from present payment of the money, because the bill is lost; for though the accepted bill be lost, yet he that accepted it is not: Neither must "the acceptor think this to be a sufficient answer for him to say, "shew me my accepted bill and I will pay you, and such like flams, merely to make use of the money a little longer time. He may, in case of obstinacy, be sued at law for the money, without the accepted bill, and be forced to the payment thereof with costs and damages; and therefore merely by reason of the loss of the accepted “bill, he can have no just cause or plea to detain the money beyond the just time from the right party who should receive the same." Marius then goes on to say, that for this purpose the party entitled to payment, has only to give bond or other reasonable writing to the content and good liking of the party that did accept the bill, and such as in reason he cannot refuse, engaging to save him harmless from the accepted bill which is lost, and to discharge him from the sum therein mentioned, against the drawer and all others in due form.-Therefore, if it should appear in the present case, that the indemnity of fered was such as in reason the defendant could not refuse, the pro

"

VI. Of the loss of livery, it should seem, that even if it were lost after it

bills, &c.

became due, and after action brought, the same rule prevails'; nor is the defendant liable to be sued on the

duction of the bill would be dispensed with, and the acceptance being proved by secondary evidence, the plaintiff would be entitled to a verdict. Lord Ellenborough.-If the bill were proved to be destroyed, I should feel no difficulty in receiving evidence of its contents, and directing the jury to find for the plaintiff. Even on a trial for forgery, the destruction of the instrument charged by the indictment to be forged, is no bar to the proceedings. I remember a case before Mr. Justice Buller, where the prisoner had destroyed a bank note he was accused of having forged, by swallowing it. He was acquitted on the merits; but the learned judge who presided held, that he might have been convicted without the production of the bank note, and this doctrine was approved of by the whole profession Here, however, the instrument is not destroyed. It is lost after being indorsed by the payee. It may now be in the hands of a bonâ fide indorsce for value, who might maintain an action upon it against the defendant. This brings it to the indemnity. But whether an indemnity be sufficient or insufficient, is a question of which a court of law cannot judge. There are dicta to be sure, that upon the offer of an indemnity the indorsee of a lost bill may recover at law; but these are so contrary to the principles on which our judicial system rests, that I cannot venture to proceed upon them. Since the plaintiff can ncither produce the bill nor prove that it is destroyed, he must resort to a court of equity for relief. The attorney general said, they could shew that the bill had been discounted for the defendant's accommodation, and that the money bad come into his hands; but Lord ElJenborough observed, that would not alter the case; for if the plaintiff were allowed to recover on the money counts, the defendant might still be compelled to pay the same sum a second time to a bonâ fide holder of the bill. Plaintiff nonsuited.

Mayor and others v. Johnson and another, 3 Campb. 324. A traveller received a country bank note payable to bearer, in a provincial town, which he cut in two, and sent the halves on different days by the post, addressed to his employers in London, one of these was stolen from the mail coach, and they received the other. It was held, that under these circumstances they could not maintain an action against the makers of the note, on producing that half of it which reached them safely. Lord Ellenborough said, I am of opinion, that this action cannot be maintained. It is usual and proper to pay upon au indemnity, but payment can be enforced at law, only by the production of an entire note, or by proof that the instrument or the part of it which is wanting has been actually destroyed; the half of this note, taken from the Leeds mail, may have immediately got into the hands of a bona fide holder for value, and he would have as good a right of suit upon that, as the plaintiffs upon the other half which reached them; but the maker of a promissory note cannot be liable in respect of it to two parties at the same time. Plaintiffs nonsuited.

N. B. This case is distinguishable from that of Mossop v. Eadon, 16 Ves. jun. 430. post, 201, because, in that case, the notes were not payable to order or negotiable, whereas, in the above case, they were payable to bearer.

Poole v. Smith, 1 Holt's C. N. P. 144. In an action by the indorsee of a bill of exchange, against the acceptor; it appeared that after action brought, and notice of trial, the bill, which was indorsed in blank, had been lost, and it was held, that although the

consideration of the bill; and even an express pro- VI. Of the loss of bills, &c. mise without any new consideration cannot be enforced at law; though if there be a new consideration for the

bill had been drawn more than six years, the plaintiff was not entitled to recover, without producing it at the trial; and per Gibbs, C. J, upon the ground of the non-production of the bill, I think I am called upon to nonsuit the plaintiff; the rule is an extremely salutary one, and ought not to be relaxed. See also Powell v. Roach and others, 6 Esp. Rep. 76. S. P.

But in Brown and others v. Messiter, 3 M. & S. 281, the court referred it to the master to see what was due for principal and interest upon a bill of exchange, upon the production of a copy of the bill verified by affidavit of the plaintiffs' attorney, the original having been stolen out of his pocket, and no tidings of it gained.

1 Bevan v. Hill, 2 Campb. 381. A check given for stock sold, was lost by the vendor in going home from the stock exchange; the purchaser was immediately informed of this fact, but refused to pay without an indemnity; four months after, the bankers, on whom the check was drawn, stopped payment, with sufficient money to answer it of the drawer's in their hands; held, that under these circumstances, an action would not lie for the price of the stock. Lord Ellenborough said, it is certainly possible, that this check may have got into the hands of a person who might maintain an action upon it. The very day it was lost it might have been passed for value to a bonâ fide holder without notice; I therefore think the defendant was entitled to an indemnity; he could not, without this, have safely withdrawn the money from Walpole and Co. before their bankruptcy; he then ceased to be liable upon the check, but the money was gone; besides, the bankruptcy of Walpole and Co. may not be sustainable, and the defendant is not to be exposed to the risk of the commission being superseded. Plaintiff nonsuited.

Dangerfield v. Wilby, 4 Esp. Rep. 159. Where a promissory note. has been given for money due by the defendant to the plaintiff, who declares on it, together with the money counts, he must prove the note lost or destroyed before he can have recourse to the money counts if it appears that the money so claimed was that for which the note was given. Lord Ellenborough said, he was of opinion, the plaintiff was not entitled to go into the consideration of the note, for, as the note, for any thing that appeared in evidence, was in existence, it might be still in circulation, and the defendant be liable to be called upon to pay it, so that he might be subjected twice to the payment of the same demand; it was therefore incumbent on him to shew it to be lost, so that the defendant should not be again subjected to the payment of it. As to any demand therefore, on account of the note, he thought the plaintiff not entitled to recover. The plaintiff was nonsuited; and see Pierson v. Hutchinson, ante, 197, n. 3.

Davis v. Dodd, 4 Taunt. 602. The plaintiff declared upon a bill of exchange for £96. 9s. drawn by Allen, to his own order, and accepted by the defendant, and indorsed by Allen to the plaintiff. There were also the usual money counts. Upon the trial, at Maidstone, Summer Assizes, 1812, before Lord Ellenborough, C. J. it was proved that the witness had lost the bill out of his pocket, whereupon when the bill became due, he applied to the defendant, stating the circumstance and requesting him to pay the bill, which, until the time of action, had never been presented for payment by any other person; and defendant repeatedly and expressly promised to pay it. Lord

VI. Of the loss of promise, as the executing of a bond of indemnity to

bilis, &c.

the defendant, he may be sued thereon'.

If, however, it can be proved that the bill has been destroyed, the party who was the holder may recover at law; so if the bill was not negotiable, or has not been indorsed, or if it was only specially indorsed, the party who lost it may proceed by action on such bill, and secondary evidence of the contents may be admitted*.

In Walmsley v. Child', it seems to have been considered, that a party who had lost a bill payable on

Ellenborough was of opinion, that as the plaintiff had not presented the bill for payment to the defendant, and as the bill was not produced at the trial, the plaintiff could not recover in this action, and directed a nonsuit. Best, serjeant, now moved to set aside the nonsuit, and have a new trial; he contended that the express promise to pay the bill was upheld by the consideration of the moral obligation to which the defendant was subject to pay the sum due on his acceptance. The court denied that there was any moral obligation on the defendant to pay this sum to the plaintiff, who, by his negligence, had exposed the defendant to the danger of being compelled to pay the bill when produced in the hands of another holder. It was quite clear that the plaintiff could not recover in this action, if he could recover at all upon this promise, which they much doubted; it must be in an action upon the special undertaking; the party might have proceeded to enforce the giving of a new bill under the statute, and that seemed to be his only course. The promise contained in the bill is the equivalent given for the consideration paid for the bill, and no new consideration had been subsequently paid to sustain this new promise, which was therefore nudum pactum, and could not be enforced. Rule refused.

Williams v. Clements, 1 Taunt. 523. Special assumpsit, alleging that the defendant was indebted on a bill of exchange, and that plaintiff having lost the same, had, at the request of the defendant, given him a bond acknowledging payment and conditioned to indemnify him against the bill, in consideration whercof, defendant undertook to pay the money on request. On motion in arrest of judgment it was held, that such count, stating such new consideration of executing the bond was sufficient.

2

Pierson v. Hutchinson, 2 Campb. 212.-6 Esp. Rep. 126. S. C,— Ante, 197. note 3.-Bayl. 169.

3

Mossop v. Eadon, 16 Ves. jun. 430. post, 201,

*Long v. Bailie, 2 Campb. 214, in note.-Mossop v. Eadon, 16 Ves. jun. 430. 434. post, 201.-Bayl. 169.-Selw. Ni. Pri. 4th edit. 328. Long v. Bailie, Guildhall, 13th December, 1805, coram Lord Ellenborough, 2 Campb. 214. This was an action against the acceptor of a bill of exchange, payable to the order of the drawer, and by him specially indorsed to the plaintiff. It was proved that a person took the bill to have it compared with the affidavit to hold to bail; that a copy was then taken, and the bill was afterwards stolen from such person. The correctness of this copy and the special indorsement was proved, and the plaintiff had a verdict.

5 Walmsley. Child, 1 Ves. sen. 341, &c.