bills, &c. demand might proceed at law; and in Hart v. King', VI. Of the loss of where a bill of exchange was protested, and afterwards lost, the plaintiff recovered, but it does not appear in what character the plaintiff sued, and it is probable that the bill had never been indorsed. In ex parte Greenway, Lord Chancellor Eldon said, "that "when he was Chief Justice he tried an action in the "Common Pleas, upon a bill alleged to be lost, which "had been previously indorsed by the payee, an in"demnity was offered by bond, but that he nonsuited "the plaintiff; that the counsel objected strongly upon the offer of indemnity, and it came before the court on a motion for a new trial, and there was a long discussion on the nature of these indemnities "in a court of law; that the court had not come to a decision upon it when he left them, and he did 46 not know the result. But that he never could un"derstand by what authority courts of law compelled "parties to take the indemnity 3." But in the case of Mossop v. Eadon, where a bill was filed in equity for payment of a promissory note which had been cut in two parts, one of which was produced and the other alleged to be lost, and offering an indemnity the bill was dismissed on two grounds; the first, that only half the bill was lost, and secondly, that it was not payable to order, and consequently an action at law was sustainable; and it being urged that the jurisdiction of the court of equity is not destroyed by the courts of law assuming a jurisdiction in such cases, the Master of the Rolls said, "It is very clear that an action would have laid upon the note had the loss been proved. The single question is, whether the 'Hart v. King, 12 Mod. 310.-Holt, 118. S. C.-Dehers v, Harriot, I Show. 163, Ex parte Greenway, 6 Ves. jun. 812. 3 See also Toulmin v. Price, 5 Ves. jun. 238.-Bromley v. Holland, 7 Ves. 19, 20. 249. *16 Ves. jun. 430. Note, in that case the bill of exchange was not payable to order, and consequently not negotiable, which makes this case distinguishable from that of Mayor v, Johnson, 3 Campb. 325. bills, &c. VI. Of the loss of indemnity you offer is not a ground for coming here? The court of law could not take notice of it and give a conditional judgment; but equity gives that relief at the same time that it orders payment of the money. The other half of the note may be in your possession; therefore it is fit that you should indemnify them against the possibility, that the two parts may be brought together and passed into another hand." Upon a further hearing the counsel for the plaintiff insisted, that the mere loss of the instrument gives the court of equity jurisdiction, and that it does not depend on the right to require an indemnity, observing that there was no distinction whether a note was negotiable or not. But the Master of the Rolls said, "This argument is in direct contradiction to that of Lord Hardwicke, who, in the case of Walmsley v. Child, assumes that this court has no jurisdiction, except for the purpose of ordering an indemnity where indemnity is necessary. I am unwilling to turn the plaintiff round, thinking the merits are with him; but at the same time I am afraid of breaking in upon the rules established as to the jurisdiction of the courts, that, where a party can recover at law, he ought not to come into equity." When a bill, &c. has been lost before it was due, unless the party proceed under the statute 8 & 9 W. 3. c. 17. s. 3. it may be proper that he should be confined to a Court of Equity for relief; for as a transfer before a bill is due, though made by a person not entitled thereto, may give a bonâ fide holder a right of action thereon; it is but just that the parties called upon to pay should be previously sufficiently indemnified, and the sufficiency of an indemnity can be more correctly ascertained in a Court of Equity than at Law'; but where a bill has been lost after it became due, and that fact be clearly proved, there seems to be no reason Ex parte Greenway, 6 Ves. jun. 812.-Pierson v. Hutchinson, 2 Campb. 212-6 Esp. Rep. 126. S. C. ante, 193, n. 3. bills, &c. why the party who lost it should not be permitted to VI. Of the loss of proceed at law, and indeed without offering an indemnity, inasmuch as the law itself would in such case indemnify all the parties to the bill from any liability to a person who became holder of it after it was due; for, as we have already seen', a person taking a bill by transfer after it becomes due, holds it subject to all the objections which affected it in the hands of the party who first became wrongfully possessed of it, or who tortiously transferred it, consequently he could not sustain an action thereon against any of the parties to the bill; and there is an additional reason why this should obtain as to the drawer and indorsers of a bill, and the indorsers of a note, namely, that they must have been discharged from liability to any subsequent holder, by the want of notice from such holder of the default in payment by the drawce". It is said that if one part of a foreign bill of exchange, drawn in sets, be lost by the drawee, or be by his mistake given to a wrong person, or if by any other means the holder cannot have a return of the bill, either accepted or not accepted, the drawee must give to the holder or to his order a promissory note for payment of the amount of the bill on the day it becomes due, on delivery of the second part if it arrive in time, or if not, upon the note, and if the acceptor refuse to give the note, the holder must immediately protest for non-acceptance, and when due, must demand the money, though he have neither note nor bill, and if payment be refused, a protest must be regularly made for non-payment. In all cases if a bill of exchange be lost, and a new bill cannot be had of the drawer, a protest may be made on a copy *. Where a creditor directs his debtor to remit him, by post, the money due to him by due to him by a bill of exchange, bills, &c. VI. Of the loss of cash, note, &c. or where it is the usual way of paying such debt, if the bill be lost the debtor will be discharged'; but where the defendant, in discharge of a debt which he owed to the plaintiff, delivered a letter, containing the bills which were lost, to a bellman in the street, it was decided that he was not discharged from liability to pay the debt, because it was incumbent on him to have delivered the letter at the General Fost-office, or at least at a receiving-house appointed by that office'. * Warwick v. Noakes, Peake, 67. 2 * Hawkins v. Rutt, Peake, 186; and see Parker v. Gordon, 7 East, 385. 205 CHAPTER V.* OF PRESENTMENT OF A BILL FOR ACCEPTANCE-ACCEPTANCE-NON-ACCEPTANCE-CONDUCT WHICH THE HOLDER SHOULD THEREUPON PURSUE; AND OF ACCEPTANCE SUPRA PROTEST. any ON delivery of a bill of exchange to the payee, or other person who becomes holder by transfer, it is in some cases necessary, and in all advisable, to present it for acceptance. On such presentment, the drawee either complies with the drawer's request by accepting the bill, or refuses to do so: in which latter case it is in general incumbent on the holder to give notice to the various other persons who became parties to the bill antecedently to himself; after which any person not originally a party, may accept it supra protest for the honour of the drawer or indorsers; and in some cases the holder may protest a bill for better security. In treating of each of these matters in their natural order, it will be necessary, to consider, First, when a presentment for acceptance is necessary, and at what time, and in what manner it must be made: Secondly, by whom, at what time, and in what manner, an acceptance may be made, and the obligation it imposes on the acceptor: Thirdly, the conduct which the holder must pursue, in case of a refusal to accept: Fourthly, the protest for better security, and Lastly, of acceptances supra protest. As checks, promissory notes, and bills, when payable on demand, are never presented for acceptance, or accepted, the observations in this chapter in regard to presentment for acceptance, will in general be inapplicable to those instruments. |