XXV.

CHAPTER had destroyed a bank note he was accused of having forged by swallowing it; and 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" (i). But this doctrine was overruled as to negotiable instruments, and it is now settled that the owner of a destroyed bill or note, if negotiable, cannot, at common law (j), recover against the other parties (k), whether the bill be actually indorsed or not (7). Nor can he even sue on the consideration (m).

Will not lie on lost bill or note.

And it is also now clear that, if a bill, note, or cheque, negotiable either by indorsement or by delivery only (n), be lost, no action at common law will lie at the suit of the loser against any one of the parties to the instrument, either on the bill or note itself, or on the consideration (o). "Upon the question," says Lord Tenterden, "whether an action can be brought on a lost bill, the opinions of the Judges, as they are to be found in the cases, have not been uniform, and cannot be reconciled to each other. Amid conflicting opinions, the proper course is to revert to the principle of these actions on bills of exchange. The custom of merchants is that the holder of a bill shall present the instrument, at its maturity, to the acceptor, demand payment of its amount, and, upon the receipt of the money, deliver up the bill. The acceptor, paying the bill, has a right to the possession of the instrument for his own security, and for his voucher and discharge pro tanto in his account with the drawer. As far as regards his voucher and discharge towards the drawer, it will be the same thing whether the instrument has been destroyed or mislaid. With respect to his own security against a demand by another holder, there may be a difference. But how is he to be assured of the fact, either of the loss or destruction of the bill? Is he to rely upon the assertion of the holder, or to defend an action at the peril of costs? And, if the bill should afterwards

(i) Pierson v. Hutchinson, 2 Camp. 211; 6 Esp. 126.

(j) I.e., before the 17 & 18 Vict. c. 125, s. 87, which though not repealed is reproduced in Code, ss. 69 and 70. It seems to have been always tacitly assumed that accidental destruction of a bill or note was on the same footing as the loss of one.

(k) Hansard v. Robinson, 7_B. & C. 90; 9 D. & R. 860. But see Woodford v. Whiteley, Moo.

XXV.

appear and a suit be brought against him by another holder, CHAPTER a fact not absolutely improbable in the case of a lost bill, is he to seek for the witnesses to prove the loss, and to prove that the new plaintiff must have obtained it after it became due? We think the custom of merchants does not authorize us to say that this is the law." And the law is the same though the bill had never been indorsed (p), and whether the bill be due or not (q). 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?" (r).

But if a bill or note, not negotiable (that is to say, an Unless not instrument payable to the payee only, and with words originally restraining transfer), be lost, it is conceived (s) that an action negotiable. will lie either on the bill or on the consideration (t).

The defence that the bill was lost before action brought Pleading. must, in the superior Courts, be raised by plea, otherwise the plaintiffs may recover, by producing the ordinary secondary evidence (u). And a judge had, till recently, no power to order a stay of proceedings until an indemnity be given (v).

If a bill be lost after action brought, and the defendant Loss after suffer a judgment by default, the Court will, on a copy action brought. verified by affidavit, refer it to the Master to see what is due (x). But if, in such a case, the defendant resists the

(p) Ramuz v. Crowe, 1 Exch. 167.

(q) Clay v. Crowe, 9 Exch. 608.

(r) Hansard v. Robinson, 7 B. & C. 95; Davis v. Dodd, 4 Taunt. 602.

(s) 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 authorities, Byles on Bills, 6th American ed., p.

560.

(t) 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; 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,
Camp. 214 n.; Champion v. Terry,
3 B. & B. 295; 7 Moo. 130; Roll
v. Watson, 4 Bing. 273; 12 Moore
510.

(u) Blackie v. Pidding, 6 C. B.
196; Charnley v. Grundy, 14 C.
B. 608.

(v) Aranguren v. Schofield, 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.

XXV.

CHAPTER 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).

Loss of halfnote.

Trover for lost bill or note.

Application for duplicate.

It has been said, that where a man takes half a note, he takes it necessarily under suspicious circumstances (2), and cannot recover to the injury of the maker. Thus, where the 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. 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).

But the

If a lost bill or note were in the hands of a party who had no right to retain it, as if, for example, it be still in the possession of the finder, or of a transferee, who has taken it from him under circumstances amounting to fraud, the true owner might bring an action of trover; or if it had been paid by the acceptor or maker to such wrongful holder, the amount was 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).

Where a bill has been lost before it is overdue (e), the

(y) Poole v. Smith, Holt, N. P. 144. See the American authorities, Byles on Bills, 6th American ed. p. 563.

(2) 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 Pro

cedure Act, 1854, s. 87, apply to the case of half-notes. Per Willes, J., at Chambers. Redmayne v. Burton, 9 Jur. 21; Smith v. Monday, 6 Jur. 977.

(c) Down v. Halling, 4 B. & C. 330; 6 D. & Ry. 455; 2 C. & P. 11; Lovell v. Martin, 4 Taunt. 799.

(d) As to the liability of a party wrongly paying, see ante, Chapter on PAYMENT.

(e) A transferee of an overdue

XXV.

loser may apply to the drawer to give him a duplicate, CHAPTER giving, if required, security to the drawer to indemnify him against all persons in case it be found. The drawer may be compelled to give such duplicate (ƒ).

of the Court.

In any action or proceeding on a bill or note the Court Statutable or a judge may order that the loss of the instrument shall jurisdiction not be set up, provided an indemnity be given to the satisfaction of the Court or judge against the claims of any other person upon the instrument in question (g).

When a debtor remits to his creditor a bill or note, by a On whom loss conveyance which the creditor directs, or by post, if that be of a bill transthe ordinary vehicle of transmission between them, and the mitted by post bill or note be lost or stolen, the loss will fall on the party to whom it was intended to be remitted (h).

will fall.

The presumption of law is that a lost or destroyed bill or Presumption note was duly stamped, unless the contrary be shown (i). as to stamp.

396

CHAPTER XXVI.

OF THE LEGAL REMEDIES FOR AND AGAINST
PARTIES TO A BILL OR NOTE.

I.

COLLATERAL

REMEDIES.

To obtain

BEFORE passing to the remedy by action on the bill, it is desirable to notice certain collateral remedies incidental to the position of the parties.

And firstly, cases may arise in which the bill needs rectirectification fication (a); or in which the due signature, indorsement (aa) or compel or delivery (b) of a bill by one of the parties may be completion of necessary to complete the contract, and give to another party his full rights upon the bill. In such a case, provided that no adequate relief could be obtained in damages (c),

contract.

(a) Druiff v. Lord Parker, L.
R. 5 Eq. 131, 37 L. J., Ch. 241.
(aa) See Code, s. 31 (4).
(b) Code, ss. 2, 21.

(c) See, for example, Ex parte Masterman, 4 Dea. & Ch. 751; 2 Mont. & A. 209; 4 L. J., N. S., Bkcy. 54.