THOUGH the finder of a lost bill or note acquires no property in it, so as, on the one hand, to enable him to defend an action of trover brought by the rightful owner, or on the other, to sue the acceptor or maker, yet we have already seen, that, if the finder transfer a lost bill or note, which may pass by delivery, his transferee, provided he took it without fraud, is entitled both to retain the instrument against the loser, and to compel payment from the parties liable thereon.

Let us now inquire what steps the loser should take. And, in the first place, it is settled, that, if bills or notes be lost or stolen out of letters put into the post-office, no action lies against the PostmasterGeneral. "The case of the postmaster," says Lord Mansfield, "is in no circumstance whatever similar to that of a common carrier; but he is like all other public officers, such as the Lords Commissioners of the Treasury, the commissioners of the Customs and Excise, the Auditors of the Exchequer, &c.; who were never thought liable for any negligence or misconduct of the inferior officers, in their several deparments."(a) But a deputy postmaster is liable for neglect in not duly delivering letters.(1)(6)

(a) Whitfield v. Lord Le Despencer, Cowp. 754; Lane v. Cotton, 1 Salk. 17. (b) Rowning v. Child, 3 Wils. 443; 2 Bla. Rep. 906; 5 Burr. 2716; Hordern v. Dalton, 1 C. & P. 181.

(1) Maxwell v. McIlroy, 2 Bibb, 211. 181. Bishop v. Williamson, 2 Fairfield, Franklin v. Low, 1 Johns. 396. Dunlop 495. Schroyer v. Lynch, 8 Watts, 453. v. Munroe, 7 Cranch, 242. Bolan v. Teall v. Felton, 3 Barbour, S. C. 512. Williamson, 2 Bay, 551. S. C. 1 Brevard, S. C. 1 Comstock, 537.

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*It is advisable that the loser should immediately give notice of the loss to the parties liable on the bill; for they will thereby be prevented from taking it up without due inquiry.(1) Public advertisement of the loss should also be given; for, if any person whosoever discounts it with notice of the loss, that will be such strong evidence of fraud than he can acquire no property in it.(c)

(c) A public notification of the loss is not only advisable to prevent the transfer of lost or stolen bills or notes into the hands of bona fide holders, but there are cases in which it was formerly considered essential to the plaintiff's right to recover of those who might have taken the instrument. See the observations of Best, C. J., in Snow v. Peacock, 3 Bing. 411; 11 Moo. 286, S. C. The law formerly was, that if a man took a lost bill or note negligently, he acquired no title against the rightful owner; but if the loser had neglected to publish his loss, and the receiver took the note, not dishonestly, but negligently, then the negligence of the loser equalled the negligence of the receiver, and potior erat conditio possidentis; Snow v. Peacock, 3 Bing. 411; 11 Moo. 284; Strange v. Wigney, 6 Bing. 677; 4 M. & P. 470, S. C. Thus, where the plaintiff was robbed of his pocket-book, containing an indorsed bill, and then advertised the pocket-book, saying nothing of the bill, but on the contrary, stating in the advertisement that the contents of the pocket-book were of no use to any but the owner, the Court of C. P. held that he was not entitled to recover against a negligent receiver; for that his notice that the contents of the pocket-book were of no use to any but the owner, tended rather to mislead than to assist parties to whom the bill might be offered. Beckwith v. Corral, 3 Bing. 444. If due notice had been given of the loss, then, though the receiver took the instrument bona fide and without suspicion, yet if he failed to exercise proper care and caution, as if he discounted or changed a bill or note of considerable amount for a stranger, without inquiry, he must have refunded; Gill v. Cubitt, 3 B. & C. 466; 5 Dowl. & R. 324; Strange v. Wigney, 6 Bing. 677; 4 Moo. & P. 470, S. C. But the law on this subject is now entirely changed. See the Chapter on Transfer, and the observations of Lord Denman in Bartrum v. Caddy, 9 Ad. & E. 280; 1 Per. & Dev. 207, S. C. The plaintiff went to a public meeting in London with more than 5007. in his pocket, and entertaining some apprehension of the company in which he found himself, kept his hand on his pocket, but notwithstanding that precaution, was robbed, and among other property lost a bank of England note for 2007., payable to bearer. He advertised his loss in the newspapers. Nearly two years afterwards, this note was traced to the possession of the defendant, who received it, as he said, in payment of a debt on the Derby stakes, but could not recollect from whom. The plaintiff sued him in trover, and the Court held the negligence of the plaintiff not connected with the defendant's conduct, could not be set up as an answer to his

(1) Held not to be necessary to entitle the owner to maintain an action to recover the contents of a lost note. Dormady v. State Bank, 2 Scam. 236.

It is proper for the loser to give immediate notice to the parties, and to publish notice of the loss; but public notice,

not brought home to the buyer will not affect his title; nor will the failure to give public notice preclude the owner from showing by other proof that the buyer took the note mala fide. Matthews v. Poythress, 4 Georgia, 287.

We have already seen that, if the bill be transferable only by in dorsement, a forgery can convey no title, and a payment *by

[*299] the acceptor, or other party to a man, claiming under the

forged indorsement, will not exonerate him.

The party who has lost or destroyed a bill must, nevertheless, make application to the drawee for payment at the time it is due; and give notice of dishonour, for the bill might still have been paid with or without an indemnity, and the prior parties, by not having been advised of the dishonour, may have been prevented from pressing their respective remedies against parties liable to them.(d)(1)

There are three cases in which a plaintiff cannot produce a bill: it may be in the defendant's hands; it may be destroyed; or it may be lost.

If it be in the defendant's hands, the plaintiff may give him notice to produce; and, if the defendant will not do so, the plaintiff may give secondary evidence of its contents. (e)

So, if it can be proved that the instrument has been destroyed, secondary evidence of its contents has been held admissible. "If a bill be proved to be destroyed," says Lord Ellenborough, "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. J. Buller, where the prisoner 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 pro

claim, and that the defendant had not exercised due caution in taking the note. Easley v. Crockford, 10 Bing. 243; 3 M. & Scott, 700, S. C.; see Snow v. Saddler, 3 Bing. 610; 11 Moo. 506, S. C. The caution required of a person discounting was held to increase with the amount. See ante, Chapter on Transfer.

(d) Thackray v. Blackett, 3 Camp. 164.

(e) Smith v. M'Clure, 5 East, 477; 2 Smith, 443, S. C.

(1) Hinsdale v. Miles, 5 Conn. 331. The fact that a bill is lost is an excuse for delay in making a demand upon the drawee, but for no more than reasonable delay. Aborn v. Bosworth, 1 Rhode Island, 401.

In order to charge the indorser of a lost promissory note, the owner must tender an indemnity to him and the maker at the time of demand and notice. Smith v. Rockwell, 2 Hill, 482.

fession."(f) But it should seem, from the judgment of the Court of King's Bench in a recent case, that this doctrine is now overruled, and that the owner of a destroyed bill or note, if negotiable, cannot, at law, recover against the other parties.(g)(1)

And it seems now clear that, if a bill, note, or check, negotiable either by indorsement or by delivery only, (h) be lost, no action will lie for the loser against any one of the *parties to the instru[*300] ment, either on the bill or note itself, or on the consideration. "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 the 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

(f) Pierson v. Hutchinson, 2 Camp. 211; 6 Esp. 126, S. C.

(g) Hansard v. Robinson, 7 B. & C. 90; 9 Dowl. & R. 860, S. C. But see Woodford v. Whiteley, Moo. & M. 517, and Wain v. Bailey, 10 Ad. & E. 616; 2 Per. & Dav. 507, S. C.; see Price v. Price, 16 M. & W. 243; Ramuz v. Crowe, 1 Exch. Rep. 172.

(h) Bevan v. Hill, 2 Camp. 381.

(1) A recovery cannot be had on a note merely lost and not destroyed if it had been indorsed before it was lost. Pintard v. Tackington, 10 Johns. 104. Baker v. Dumbolton, Ibid. 240. Rogers v. Miller, 4 Scam. 333.

Contra; if the payer had not indorsed it. Depew v. Wheelan, 6 Blackford, 485. Whitesides v. Wallace, 2 Speers, 194. Dean v. Speakman, 7 Blackford, 317. Branch Bank v. Tillman, 12 Alabama, 214.

note in an action against the maker, is not required to give direct and positive evidence of its destruction where he has not produced the note on trial, although such note is overdue. It is sufficient if he give such proof as shows that the defendant cannot afterwards be compelled to pay the amount to a bona fide holder. Swift v. Stephens, 8 Conn. 431.

That an action at law may be maintained upon a negotiable bill or note proved to be destroyed: See Rowley v.

The holder of a negotiable promissory Ball, 3 Cowen, 303.

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 appear, and a suit be brought against him by another holder, a fact not absolutely improbable in the case of a lost bill, is he to seek for 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."

But, if a bill or note, not negotiable, be lost, it is conceived that an action will lie, either on the bill or on the consideration.(1) Where a bill made or became payable to bearer is lost, the acceptor, or other parties, are not liable, though the bill was lost after it was due, or 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?”(k)(1)

(i) Wain v. Bailey, 10 Ad. & E. 16; Price v. Price, 16 M. & W. 243; Ramuz v. Crowe, 1 Exch. Rep. 174; Hansard v. Robinson, 7 B. & C. 90; 9 Dowl. & 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. Rep. 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.

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

(1) When the existence, amount and loss of promissory notes is shown and it does not appear that they were negotiable, the plaintiff is entitled to recover on the lost notes. McNair v. Gilbert, 3 Wendell, 344. Pintard v. Tuckington, 10 Johns. 104. Hough v. Barton, 20 Vermont, 455.

A recovery can be had at law upon a note lost after it fell due; if it was lost before due, the remedy is, it seems, in chancery where the owner can be required to indemnify the maker. Thayer v. King, 15 Ohio, 242.

If the note is alleged to be lost, the defendant has a right to show that the note was passed by the payee by delivery without assignment. Buston v. Dees, 4 Yerger, 4.

A plaintiff cannot give evidence of a lost promissory note, without first proving its loss, so as to repel an inference of fraudulent design in the loss or destruc tion. Blade v. Noland, 12 Wendell, 173.

If a negotiable note indorsed in blank by the payee, be lost by the indorser, and he afterwards assigns to another his right thereto, the assigner cannot maintain an action at law in his own name upon such lost note. Willis v. Crescy, 5 Shepley, 9.

The payee of a promissory note, not under seal, which is lost, may maintain assumpsit for the amount but must aver a consideration. Stephens v. Crostwait, 3 Bibb, 222.