CHAPTER Unless not originally negotiable. Pleading. Loss after action brought. to say that this is the law." And the law is the same though the bill had never been indorsed (o), and whether the bill be due or not (p). Where a bill made or become payable to bearer is lost, the acceptor, or other party, is not liable, though the bill was lost after a promise to pay by the acceptor. "If," says Lord Tenterden, " upon an offer of payment, the holder should refuse to deliver up the bill, can it be doubted that the acceptor might retract his offer, and retain his money?" (q). But if a bill or note, not negotiable (that is to say, an instrument payable to the payee only, and not to his order or to bearer), be lost, it is conceived (r) that an action will lie either on the bill or on the consideration (s). The defence that the bill was lost before action brought must, in the superior Courts, be raised by plea, otherwise the plaintiffs may recover by producing the ordinary secondary evidence (t). And a judge has no power to order a stay of proceedings until an indemnity be given (u). If a bill be lost after action brought, and the defendant suffer judgment by default, the Court will, on a copy verified by affidavit, refer it to the Master to see what is due (x). But if, in such a case, the defendant resists the action, and puts the plaintiff to prove the bill, under the ordinary issues the loss is no excuse for the non-production of it (y). (0) Ramuz v. Crowe, 1 Exch. 167. (p) Clay v. Crowe, 9 Exch. 608. (q) Hansard v. Robinson, 7 B. & C. 95; Davis v. Dodd, 4 Taunt. 602. (r) In America the general rule seems to be that an action will lie on a destroyed bill though negotiable, and on a lost bill though negotiable if not indorsed. See the American anthorities, Byles on Bills, 5th American ed. p. 540. (8) Wain v. Bailey, 10 Ad. & E. 616; Price v. Price, 16 M. & W. 243; Ramuz v. Crowe, 1 Exch. 167; Hansard v. Robinson, 7 B. & C. 90; 9 D. & R. 860, S. C.; but see Woodford v. Whiteley, Moo. & M. 517; Bevan v. Hill, 2 Camp. 381; see, however, Ramuz v. Crowe, 1 Exch. 172; Long v. Bailie, 2 Camp. 214, n.; Champion v. Terry, 3 B. & B. 295; 7 Moo. 130, S. C.; Rolt v. Watson, 4 Bing. 273; 12 Moore, 510, S. C. (t) Blackie v. Pidding, 6 C. B. 196; Charnley v. Grundy, 14 C. B. 608. (u) Aranguren v. Scholfield, 1 H. & N. 464. (x) Brown v. Messiter, 3 M. & Sel. 281; Allen v. Miller, 1 Dowl. 420; Clarke v. Quince, 3 Dowl. 26; Flight v. Browne, 2 Tyr. 312. (y) Poole v. Smith, Holt, N. P. 144. See the American authorities, Byles on Bills, 5th American ed. note. CHAPTER It has been said, that where a man takes half a note, he takes it necessarily under suspicious circumstances (z), and cannot recover to the injury of the maker. Thus, where Loss of halfthe holder sued on the half of a 5l. note, the other half having been stolen from the Leeds mail, Lord Ellenborough said, "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 bonâ fide holder for value; and he would have had as good a right of suit upon that as the plaintiff has upon this. But the maker of a promissory note cannot be liable, in respect of it, to two parties at the same time" (a). It is doubtful how far the argument, from the liability of the maker on the second half, would be held valid at this day. The holder of the first half has good title and no notice; the holder of the second half has a bad title and notice. But it may be a question whether a half note be for all purposes a negotiable instrument (b). If a lost bill or note be in the hands of a party who has Trover for lost no right to retain it, as if, for example, it be still in the bill or note. possession of the finder, or of a transferee, who has taken it from him under circumstances amounting to fraud, the true owner may bring an action of trover; or, if it had been paid by the acceptor or maker to such wrongful holder, the amount is recoverable in an action for money had and received (c). And we have seen that, if the maker or acceptor pay it improperly, the amount will not be allowed him in account with the payee or drawer (d). But, where no action lies on the lost bill, or on the con- Remedy for loser sideration, as, where the bill has been indorsed in blank, and in equity. where no action can be brought against a wrongful holder, either in trover or assumpsit, the loser was not absolutely without remedy even before the recent statute; he might then resort to a court of equity for relief. (z) Bayley, 6th ed. 379. (a) Mayor v.Johnson, 3 Camp. 324; Mossop v. Eaden, 16 Ves. 436. (b) The Bank of England have always been in the habit of paying half-notes on an indemnity. And it has been held that the provisions of the Common Law Procedure Act, 1854, s. 87, apply to the case of half-notes. Per Willes, J., at Chambers, Redmayne v. (c) Down v. Halling, 4 B. & C. (d) As to the liability of a party wrongly paying, see ante, Chapter on PAYMENT. CHAPTER XXVIII. The 9 & 10 Will. 3, c. 17, s. 3, enacts, 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 it is delivered giving security, if demanded, to the drawer, to indemnify him against all persons whatsoever in case the said bill, so alleged to be lost or miscarried, shall be found again" (e). This provision is not peculiar to the law of England, but agreeable to the mercantile law of other countries (ƒ). Notwithstanding some authorities to the contrary (g), it is now clearly settled that a Court of common law has no jurisdiction under this statute; a Court of law it was said not being able to enforce the giving of a new bill, or qualified to judge of the sufficiency of an indemnity (h). The relief, however, administered by Courts of equity is not confined within the letter of the statute. It will be afforded not only on such bills as are mentioned in the statute, but on others; not only before they are due, but after; not only on bills, but on notes; not only against the drawer, but against the indorser, or the acceptor; not only may a new bill be required, but payment (i). But the Court will not call on a party to renew or pay a lost bill, without providing him with a satisfactory indemnity (k). Neither will the court entertain a suit by an intended indorsee against the acceptor where there has been no actual indorsement by the payee, the bill never having become negotiable and being destroyed (1). To a suit in equity by the last indorsee of a lost bill against the acceptor, the prior indorsers need not be made parties (m). (e) The 3 & 4 Anne, c. 9, extends, as it seems, this enactment to promissory notes. (f) Code de Commerce, Liv. 1, tit. 9, art. 151, 152; Ordonnance de Commerce de Louis XIV., tit. 5, art. 19. (g) Walmesley v. Child, 1 Ves. sen. 346; Hart v. King, 12 Mod. 309; Holt, 118, S. C. (h) Ex parte Greenway, 6 Ves. 812; Davies v. Dodd, 4 Price, 176; Toulmin v. Price, 5 Ves. 238; Bromley v. Holland, 7 Ves. 19, 20, 249., (i) Walmesley v. Child, 1 Ves. sen. 346; Powell v. Monnier, 1 Atk. 611; Toulmin v. Price, 5 Ves. 238; Ex parte Greenway, 6 Ves. 812; Mossop v. Eaden, 16 Ves. 430; Hansard v. Robinson, 7 B. & C. 90; 9 D. & R. 860, S. C.; Davis v. Dodd, 4 Taunt. 602. (k) Such also is the rule of equity in America, Byles on Bills, 5th American ed. p. 545. (1) Edge v. Bumford, 31 L. J., Ch. 805. (m) Macartney v. Graham, 2 Sim. 285. XXVIII. jurisdiction of And now at law by the 17 & 18 Vict. c. 125, s. 87, in CHAPTER case of any action founded upon a bill of exchange, or other negotiable instrument, the Court or a Judge has power to New statutable order "that the loss of such instrument shall not be set up Courts of law. provided an indemnity is given, to the satisfaction of the Court or Judge, or a Master, against the claims of any other person upon such negotiable instrument (n). loss of a bill transmitted by Where a debtor remits his creditor a bill or note, by a On whom the conveyance which the creditor directs, or by post, if that be the ordinary vehicle of transmission between them, and the bill or note be lost or stolen, the loss will fall on the party to whom the bill was intended to be remitted (o). (n) Bank notes are within this act. M'Donnell v. Murray, 9 Ir. Com. Law Rep. 495. And halfnotes; per Willes, J., at Chambers, Redmayne v. Burton. Incor 67. fall. CHAPTER XXIX. Suspends the remedy on a simple contract. CHAPTER XXIX. HOW FAR A BILL OR NOTE IS CONSIDERED AS THOUGH it be a general rule of law, that one simple contract cannot be satisfied by another similar executory contract (a), for that is merely substituting one cause of action for another, yet the delivery of a valid bill or note suspends the creditor's remedy for a debt, and if he either receive the money on the instrument, or be guilty of laches, it operates as a complete satisfaction (b). "The law," says Lord Kenyon, “is clear, that if, in payment of a debt, the creditor is content to take a bill or note payable at a future day, he cannot legally commence an action on his original debt, until such bill or note becomes payable, and default is made in the payment; but, if a bill or note is of no value, as if, for example, drawn on a person who has no effects of the drawer in his hands, and who, therefore, refuses it, in such case he may consider it as waste paper, and resort to the (a) But see Com. Dig. Accord, B.; Good v. Cheesman, 2 B. & Ad. 328; 4 C. & P. 513, S. C.; Cartwright v. Cook, 3 B. & Ad. 701; Garrard v. Woolner, 8 Bing. 258; 1 M. & Sc. 327, S. C.; Carter v. Wormald, 1 Exch. 81. (b) 3 & 4 Anne, c. 9, s. 7; Sibree v. Tripp, 15 L. J., Exch. 318; 15 M. & W. 23, S. C. |