Armstrong v. Lewis ( 1869 )

By the Court

GileillaN Ch. J.

The plaintiff was, by the judgment in an action against the payee of a negotiable promissory note made by this defendant, ajjpointed receiver of said promissory note with authority to dispose of or collect the same. He never received the note into his possession, but brought suit on it against this defendant, the maker.

The judgment appointing him receiver vested in him whatever title to the note the defendant in that judgment had. Supposing such defendant to have been the owner of the note at the date of the judgment, this plaintiff occupies the position of tbe owner of a negotiable promissory note which has not been lost nor destroyed, but which when he sues on it, he cannot or does not produce at the trial. When the maker of the note pays it he is entitled to receive it as his security against future liability on it. Chitty states the rule, “ That it is a part of the contract of an acceptor of a bill or' maker of a note, to pay on the presentment of the instrument to him for that purpose, and he has therefore the right to have the instrument delivered to him as his voucher. ” Chitty on Bills, Ch. 6, p. 295, (8th Ed.) It would seem proper to adjust in the same action the respective rights of the parties, the right of the maker to the delivery of the note, with the right of the holder to enforce its payment; and that for such purpose, in an action on it the holder should be required to produce and file it. When it is lost or destroyed, the courts from necessity reach the same end, to-wit, the security of the maker, by requiring the plaintiff to indemnify him, before giving the plaintiff judgment. We can find no case, except that of loss or destruction, where the court substituted that inferior security, for the better and more natural security afforded by the delivery of the note. Courts of law in England and some of the States, denied the plaintiff any remedy in such case, on the ground of their want of power to require him adequately to secure the maker. In other States, as in Massachusetts, (16 Pick., 315,) such courts, holding that they had such power, have allowed a recovery upon the security being given.

The statute, Secs. 68 & 69, Chap. 73, Gen. Statutes, undoubtedly intends to retain the former practice as to the production and filing of notes before a recovery, or in case of loss or destruction, proof of that fact, and the execution of a bond to indemnify the maker. This case is not one of a loss or destruction, to dispense with the production of tlie note. The plaintiff must produce and file it, or prove it lost, or destroyed, and give the bond required by section 69 before he can recover. We do not decide that the plaintiff must have possession of the note when he brings his action. ITis title may be good without possession. The production of the note at the trial is required, not necessarily to establish his cause of action, but because the court will withhold a remedy on that cause of action till it is produced. Brandt vs. Foster, 5 Iowa, 287.

The order refusing a new trial is reversed and a new trial ordered.