The defence that the bill is lost must, in the superior Courts, *be raised by plea, otherwise the plaintiffs may recover by producing the ordinary secondary evidence.(1) [*301] If a bill is lost after action brought, and defendant suffer judgment by default, the Court will, on a copy verified by affidavit, refer it to the Master to see what is due.(m) But if, in such a case, the defendant resists the action, and puts the plaintiff to prove the bill, the loss may be no excuse for the non-production of it.(n)(1) A man who takes half a note takes it necessarily under suspicious circumstances, (o) and cannot recover to the injury of the maker. But, where the holder sued on the half of a 57. 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 bona 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."(p) It is doubtful how far the argument, from the liability of the maker on the second half, would be held valid at this day. If a lost bill or note be in the hands of a party who has 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 may bring an action of trover; or, if it have been paid by the acceptor or maker to such wrongful holder, the amount is recoverable in action for money had and received. (q) And we have seen that, if the maker or acceptor pay it (1) Blackie v. Pidding, 6 C. B. Rep. 196. (m) 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. (n) Poole v. Smith, Holt, N. P. Rep. 144. (0) Bayley, 6th ed. 379. (p) Mayor v. Johnson, 3 Camp. 324; Mossop v. Eaden, 16 Ves. 436. (q) Down v. Halling, 4 B. & C. 330; 6 D. & Ry. 455; 2 C. & P. 11, S. C.; Lovell v. Martin, 4 Taunt. 799. (1) In an action on a note which is lost, it is not necessary to declare on the note as lost. If such note is lost after the suit is commenced, evidence may be given of its contents. Viles v. Moulton, Easton v. Friday, improperly, it will not be allowed him in account with the payee or drawer. But, where no action lies on the lost bill, or on the consideration, as, where the bill has been indorsed in blank, and where no action. can be brought against a wrongful holder, *either in trover or [*302] assumpsit, the loser is not absolutely without remedy; he may then resort to a Court of equity for relief. The 9 & 10 Wm. 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, than 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 they are delivered giving security, if demanded, to the drawer to indemnify him against all persons whatsoever, in case the said bills, so alleged to be lost or miscarried, shall be found again."(r) This provision is not peculiar to the law of England, but agreeable to the mercantile law of other countries.(s) Notwithstanding some authorities to the contrary, (t) it is now clearly settled that a Court of common law has no jurisdiction under this statute; a Court of law not being able to enforce the giving of a new bill, or qualified to judge of the sufficiency of an indemnity.(u) On the other hand, the relief 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. (v) But the Court will not call on a party to renew or pay a lost bill, without providing him with a satisfactory indemnity. To a suit in equity by the (r) The 3 & 4 Anne, c. 9, extends, as it seems, this enactment to promissory notes. (s) Code de Commerce, Liv. 1, tit. 9, art. 151, 152; Ordonnance de Commerce de Louis XIV., tit. 5, art. 19. (t) Walmsley v. Child, 1 Ves. sen. 346; Hart v. King, 12 Mod. 309; Holt, 118, S. C. (u) 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. (v) Walmsley 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 Dowl. & R. 860, S. C.; Davis v. Dodd, 4 Taunt. 602. last indorsee of a lost bill against the acceptor, the prior indorsers need not be made parties. (w)(1) Where a debtor remits his creditor a bill or note, by a conveyance which the creditor directs, or by post, if that be the ordinary vehicle of transmission, 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.(x) *CHAPTER XXIX. [*303] HOW FAR A BILL OR NOTE IS CONSIDERED AS PAYMENT. THOUGH it be a general rule of law, that one simple contract cannot be extinguished 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 (w) Macartney v. Graham, 2 Sim. 285. (x) Warwick v. Noakes, Peake, 67. (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. Rep. 81. and may be authorised to recover on compliance therewith and on payment of Burrows v. Goodhue, 1 Iowa, costs. (1) In a suit in equity to recover on a lost promissory note, the complainant may be required, by decree of the court, to indemnify the defendant by bond and 48. security against all claims on the note, 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's in his hands, and who, therefore, refuses it, in such case he may consider it as waste paper, and resort to the original demand, and sue the *debtor on [*304] it."(c) The taking a bill or note amounts to an agreement to give the debtor credit for the time it has to run.(1) (b) 3 & 4 Anne, c. 9, s. 7; Sibree v. Tripp, 15 L. J., Exch. 318; 15 M. & W. 23, S. C. (c) Stedmand v. Gooch, 1 Esp. 3; Kearslake v. Morgan, 5 T. R. 513. An unsatisfied judgment on the bill alone will not destroy the original debt. Tarleton v. Allhusen, 2 Ad. & Ell. 32. (1) Okie v. Spencer, 2 Wharton, 253. A bill or note is not satisfaction of a pre-existing debt unless it be so agreed; or the debtor is injured by the laches of the creditor who receives it. Hoar v. Clute, 15 Johns. 224. Woodcock v. Bennet, 1 Cowen, 711. Denniston v. Imbrie, 3 Wash. C. C. 396. Dougal v. Cowles, 5 Day, 511. Hart v. Boller, 15 Serg. & Rawle, 162. McGinn v. Holmes, 2 Watts, 121. Chartain v. Cox, 2 Bailey, 574. Bill v. Porter, 9 Conn. 28. Gardner v. Gorham, 1 Douglass, 507. Weed v. Snow, 3 McLean, 265. Hay v. Stone, 7 Hill, 128. Kelsey v. Rosborough, 2 Richardson, 241. McConnell v. Stettinius, 2 Gilman, 707. Steamboat v. Hammond, 9 Missouri, 59. Morgan v. Bitzenberger, 3 Gill, 350. Elwood v. Deifendorf, 5 Barbour, S. C. 398. don v. Price, 10 Iredell, 385. Gor Aliter, if it is accepted as payment. Abercrombie v. Manly, 9 Porter, 145. Slocumb v. Holmes, 1 Howard, (Miss.) 139. Cave v. Hall, 5 Missouri, 59. Watson v. Owens, 1 Richardson, 111. Mims v. McDowell, 3 Georgia, 182. And not then, if it was the party's own note, and not the note of a third person. Cole v. Lachett, 1 Hill, 516. Waydell v. Law, 6 Hill, 448. Elwood v. Deifendorf, 5 Barbour, S. C. 398. In Maine and Massachusetts, it is presumed to have been intended as pay ment. Descadillas v. Harris, 8 Greenl. 298. Wallace v. Agry, 4 Mason, 343. Cornwall v. Gould, 4 Pick. 444. See Hutchins v. Olcutt, 4 Vermont, 555. Costar v. Davies, 3 English, 213. A creditor taking a note which he indorses and gets discounted, but is afterwards obliged to pay, has not received payment thereby of an antecedent debt. Kean v. Dufresne, 3 Serg. & Rawle, 233. If the bill or note of a third person is transferred for a debt contracted at the time, the presumption is that it is received in satisfaction; but if for a precedent debt, then that it is received as collateral security merely: but in either case the presumption may be rebutted. Bayard v. Shunk, 1 Watts & Serg. 92. The taking of such note raises a presumption that a settlement is then made of all outstanding accounts between the parties, but this is a presumption which may be rebutted by other presumptions, It is not essential to plead the taking of a negotiable instrument, either as payment, or as satisfaction. In answer to an action for a debt, it is sufficient to allege that a bill or note, payable to order or bearer, was delivered for and on account of the sum due, (d) and that the bill or note has been or is running, or that it is in the hands of a third person.(e) But a plea is not double, which alleges both that the bill was taken for and on account, and also in payment. (ƒ) But the liberty of pleading that a bill or note was given or taken on account is confined to the case of negotiable instruments. It must appear on the face of the plea that the bill or note was payable to order or to bearer, otherwise the plea is bad, even after verdict.(g) The taking a bill or note from a party bound by a contract under seal, does not extinguish or suspend the remedy on the specialty, unless the bill or note is actually paid. Thus, where one of three joint covenantors gave a bill of exchange for a part of a debt secured by the covenant, it was held that the bill only operated as a collateral security, not affecting the remedy on the covenant, and even though judgment had been obtained on the bill, Le Blanc, J., observing, “The giving of another security, which, in itself, would not operate as an extinguishment of the original one, cannot operate as such by being pursued to judgment, unless it produce the fruit of a judgment."(h) Where a tenant gave a note of hand for arrears of rent, it was held, that the landlord might nevertheless distrain, for the note was no alteration of the debt till after payment.(i)(2) (d) Kearslake v. Morgan, 5 T. R. 513; see Griffiths v. Owen, 13 M. & W. 58. (e) Price v. Price, 16 M. & W. 232; but see Mercer v. Cheese, 12 L. J. 56, C. P.; 4 M. & G. 804, S. C.; Crisp v. Griffiths, 2 C., M. & R. 159. (f) Maillard v. Duke of Argyle, M. & G. 40. And an allegation that a bill was given "on account of and in payment and discharge," is not equivalent to an allegation that it was given in satisfaction. M'Dowall v. Boyd, 17 L. J. Q. B. 295. (7) James v. Williams, 13 M. & W. 828. (h) Drake v. Mitchell, 3 East, 251; and see Curtis v. Rush, 2 Ves. & B. 416. (i) Harris v. Shipway, 1744; Ewer v. Lady Clifton, C. B., Trin. T. 1735; S. C., Bul. N. P. 182; Palfrey v. Baker, 3 Price, 572; Davis v. Gyde, 2 Ad. & Ell. 623; 4 N. & M. 462, S. C. Even a bond given for rent does not extinguish it. Rent, or by other facts and circumstances. Butts v. Dean, 2 Metcalf, 76. Ilsley v. Jewett, Ibid. 168. Maynard v. Johnson, 4 Alabama, 116. (1) Wolyamest v. Bruner, 4 Har. & McHenry, 89. Snyder v. Kunkleman, 3 Penna. Rep. 487. |