Exchequer. RYAN บ. LANDERS. is argued that, by the Registry Act, the first deed was rendered M. T. 1859. fraudulent and void against the second, the moment the second was registered; and that such being the operation of the Registry Act, the first deed must be treated as void from the time of its execution against the second, and that the proof of the registry of the second precludes the defendant from alleging, and the jury from finding, according to the "fact," that the plaintiff had title when the action was commenced. The answer to this argument appears to me to be, that even if that were so, for every other purpose, under the Registry Act, it cannot be so for the purpose of costs, under the 204th section of the Common Law Procedure Act, which is a later statute. That section expressly enacts that the plaintiff shall have a verdict according to the fact, that he was "so entitled" at the time of bringing the action and serving the writ. What is the title contemplated in this provision of the statute? It is the title of the plaintiff," as alleged in the writ at the time of the service thereof." Into the truth of that fact, that is, the existence of the title, as alleged in the writ, at the time of service thereof, the statute plainly makes it obligatory on the Court and the jury to inquire; for it enacts, that if the fact so appear, the plaintiff shall "be entitled to a verdict" and "to judgment for his costs." It is perfectly consistent with giving to the Registry Act the largest operation, in reference to the possession and enjoyment and the recovery of lands, that, for the purposes of mere procedure, and with a view to the relative rights and liabilities to costs, the state of things which was altered by the registry of a deed, and the time when it was "in fact" so altered, should be made the subject of distinct inquiry. An argument, which appears to be of a purely verbal character, was founded on the term "expired," in the 204th section of the Common Law Procedure Act. It was contended that this term imputed only an expiration by effluxion of time, as by the cesser of a term, or the termination of an estate by the event on which at some time it must have ended, as by the death of a cestui que vie, or the death of a tenant in tail, without leaving any issue, within the line of the gift in tail. As to this argument, it is to be observed, that the words are not that the plaintiff's "estate" or "interest' VOL. 9. 63 L M. T. 1859. shall appear to have expired, but "the title of the plaintiff;" that is, Exchequer. the title of the plaintiff to the possession of the lands, which title is RYAN v. the prescribed subject of the issue in the form in schedule B. The LANDERS. plaintiff's title may terminate in many ways, otherwise than by effluxion of time, or by such an event as I have mentioned. The plaintiff's title to the possession under the lease which he proved in this case, might have been terminated by surrender, by forfeiture, by attainder, by bankruptcy, by assignment or by sub-demise. By some of these modes the estate of the plaintiff would be destroyed; by others it would have had continuance, but would have been, in the whole or in part, transferred to another; none of them could be an expiration of the title, according to the argument, as I understood it and yet it would be an absurd intention to impute to the Legislature, that any of these would not be within the 204th section of the Common Law Procedure Act. In truth we should be indulging in a mere play upon the words of this section if, in construing them, we should not hold that, when a title to possession ceases to exist, it expires. For these reasons, I am of opinion that the direction of the learned Judge was right, and that the cause shown against the conditional order to change the verdict into a verdict for the defendant should be allowed. The form given in Chitty's Archbold's Forms, p. 535, for the finding of the jury under the analogous section (181) of the English Common Law Procedure Act, 15 & 16 Vic., c. 76, is substantially similar to that in which the verdict was had in this case, with the addition of these words: "and that the said " (plaintiff)" is not now entitled to the possession of the said lands." It would, I think, be desirable in future proceedings under the 204th section of our Common Law Procedure Act, to adopt the words used in the English form. In substance, however, the finding in the present case means what is expressed in that form; for if the plaintiff's title to the possession has expired before the trial, he has not that title at the time of the verdict. In the present case there was a nominal finding of sixpence damages for the plaintiff. The plaintiff did not seek, on the argument before us, to sustain that finding, and now consents to have it struck out from the verdict. The argument, at both sides, was applied to the rest of the finding. The portion relating to damages will, accordingly, be struck out, and the rest of the verdict will stand, and the plaintiff will have judgment for his costs. It would seem, from the language of the 202nd section, that the inquiry as to mesne rates is accessorial to the inquiry as to title, and only to take place when the plaintiff is found entitled to the lands. It is unnecessary, however, to express any opinion on this subject (which was not discussed in the argument before us), since the plaintiff waives all claim to damages in this action, and only seeks to retain the other portion of the verdict, under the 204th section, with a view, solely, to obtain a judgment for his costs. M. T. 1859, RYAN v. LANDERS. M'DONNELL v. MURRAY. T. T 1859. within the meaning of the 90th section of the Common Law Procedure an application on the part of the plaintiff, Edward A bank-note is a "negotiable M'Donnell, that the defendant, Robert Murray, the public officer instrument,' of the Provincial Bank of Ireland, might be restrained from setting up the loss of the promissory notes in the several paragraphs of the summons and plaint mentioned, or any of them, as a defence to the causes of action therein mentioned, or any of them; the plaintiff offering to give an indemnity, to the satisfaction of the Court, against the claims or claim of any person or persons upon said promissory notes. Act 1856; and the bankers, upon an in demnity being given, will be restrained from setting up the loss as a defence to an the note. It appeared that the action was brought to recover the sum of action upon £350, the amount of seven bank-notes for £50 each, of the Provincial Bank of Ireland, issued at Newry, and which had been lost by the plaintiff. The summons and plaint contained seven counts or paragraphs, and the first count was as follows:-"For that the "said Provincial Bank of Ireland, on the 15th day of April 1847, "by their promissory note, No. 45, commonly called a bank-note, M'DONNELL v. MURRAY. T. T. 1859. "promised to pay the bearer, on demand, £50 at Newry, and Exchequer. "negotiated the said note, and the plaintiff became and was the "bearer thereof, and, as such, entitled to the payment of said note "on demand; but the said Provincial Bank of Ireland did not pay "same to the plaintiff, although a demand was duly made upon "them at Newry for that purpose." The affidavit grounding the motion, which was the joint affidavit of the plaintiff and his attorney, stated that, on the 29th day of April 1856, the plaintiff was the owner, and possessed of the seven bank-notes upon which the action was brought; and that the notes were lost by the plaintiff on the afternoon of said day, or on the next morning; that circulars cautioning the Bank against the payment of the notes, and offering a reward for their recovery, were duly issued; and that said notes were never paid, nor presented for payment. The affidavit then stated that demands had been made for payment of the notes both in Dublin and Newry, and that an indemnity upon lands in the county of Armagh, held under an Incumbered Estates Court title, had been offered by the plaintiff to the Bank against all claims upon said notes; but, that the defendant, although he did not object to the sufficiency of the indemnity, refused to pay the amount of the notes without their production. F. Macdonogh (with him A. Close), in support of the motion. We submit that this is an action founded upon a "negotiable instrument," within the meaning of the 90th section of the Common Law Procedure Act 1856, and that the defendants should be restrained from setting up the loss. If the instrument were not negotiable, there would be no necessity for the plaintiff to apply to the Court; for then a special plea, setting up the loss of the note, would be no defence to an action founded upon it: Charnley v. Grundy (a); Wain v. Bailey (b). It is because a bank-note is a negotiable instrument that its loss is available as a defence. A bank-note is nothing but a promissory note made by a banker, and which may be, and generally is, payable to bearer on demand, and as such is transferable by mere delivery: Smith's Mercantile Law, (b) 10 Ad. & Ell. 616. (a) 14 C. B. 608. pp. 206, 216; Chitty on Bills, 10th ed., pp. 6, 351, 352. All T. T. 1859. promissory notes, including bank-notes, were made negotiable by the Exchequer. M'DONNELL v.. 8 Anne, c. 11 (Ir.), and placed on the same footing as inland bills of exchange. The 19 & 20 G. 3, c. 25, s. 11 (Ir.), recited the MURRAY. inconvenience to commerce that had arisen from mercantile companies not setting forth in their "promissory notes" the persons of whom such companies consisted, and enacted that for the future the names of the partners should be set forth in their "promissory notes." That Act was repealed by the 6 G. 4, c. 42, which introduced the Joint-stock banking system, but the character of the security was not altered. On the contrary, the 2nd section of that Act enacted that societies of persons of more than six in number might be bankers in Ireland, at places fifty miles from Dublin, and issue "bills and notes payable on demand," &c. Bank-notes are similarly described in the 4th section. The 8 Anne, c. 11 (Ir.), which placed promissory notes on the same footing as inland bills of exchange, enacts, in its 8th section, that all notes in writing, after the 1st of September 1709, made and signed by any person or persons, or by the servant or agent of any banker, &c., whereby such person should promise to pay to any other person, or order, or unto bearer, any sum of money mentioned in such note, shall be taken to be payable to such other person, and shall be assignable and indorsable. The declaration in this case, in which the defendants are sued upon a bank-note as a promissory note, is according to precedent: 2 Chit. on Pleading, p. 130. In Raphael v. Bank of England (a), Cresswell, J., in his judgment, treats a bank-note as a negotiable instrument; and in Wookey v. Pole (b), the negotiability of a bank-note and its currency are treated as controvertible terms. A bank-note then being clearly a negotiable instrument, the question is, what there is in the case to prevent the application of the 90th section? The argument of the defendants would amount to (b) 4 B. & Ald. 1. (a) 17 C. B. 161. |