Rowley v. Ball , 3 Cow. 303 ( 1824 )

Curia,

per Woodworth. J.

No exception was taken to the proof given as to the execution of the note. Were it necessary, however, to express an opinion, I should consider the evidence, prima facie, sufficient. The witness stated to the defendant that he held two notes against him, given to William Huxley ; one for $30, the other for $20. The defendant, in reply, admitted the notes, and offered to make part payment. The identity of the note to which the con-' fession related, is established with reasonable certainty. The case of Shaver v. Ehle, (16 John. 201) is clearly distin- . , ,, - , gmshable from the present.

The remaining question is, whether an action at law can be sustained on a negotiable promissory note, payable to bearer, by a person who was the holder, on his proving that the note was lost.

If the note had not been negotiable, or, if negotiable, had not, in fact, been negotiated, the plaintiff would be entitled to recover. (Pintard v. Tackington, 10 John. 104.) The pases which have not permitted a recovery at law upon negotiable paper lost, but not destroyed, were those in which the paper had been endorsed before it was lost. (Pierson v. Hutchinson, 2 Campb. Rep. 211. Ex parte Greenway, 6 Ves. 812.) In this case, the note being payable to bearer, the holder could make out, prima facie, a cause of action, and although the note was due at the time it was lost, the maker would be exposed to the hazard of shewing that fact by legal evidence. It would, therefore, seem to be a hard doctrine, which should place the maker in this situation, without requiring an indemnity. In such cases, it is better to lea we the party to his remedy in Equity, where a suitable indemnity will be provided against any subsequent recovery. This subject peculiarly belongs to Equity jurisdiction. In Ex parte Greenway, Ld. Eldon observes, “ I never could understand by what authority Courts of law compelled parties to take the indemnity.” In Pierson v. Hutchinson, Ld. Ellenborough held, that whether an indemnity be sufficient or insufficient, is a question of which a Court of law cannot judge ; and although there are dicta, that, upon the offer of an indemnity, the endorsee of a lost bill may recover at law, they are so contrary to the principles upon which the judicial system rests, he could pot venture to proceed upen them. Chitty, in his treatise on bills, p. 173, ed. of 1817, is of opinion, that where the bill has been lost after it became due, there is no reason why the person who lost it should not be permitted to proceed at law, without offering an indemnity, inasmuch as the law would, in such case, secure all the parties to the bill against future liability to a person who befomes the holder of it after it falls due. This is undoubtedly correct, provided the maker of the note, or acceptor of the. bill, could prove that it came to the hands of the holder after due. If, in the present case, the plaintiff recovers against the defendant, and subsequently a suit is commenced on the note by another, claiming to be a bona fide holder, the recovery had would not alone be a sufficient defence. The defendant must also prove the fact, that it was due when it was lost by the present plaintiff. If he could not, then the subsequent holder would recover, on the ground that it did not appear he received the note after it becgme due.

It is not necessary that the plaintiff should have a remedy at law in such a case. His redress is ample in Equity, where the defendant can be protecled against subsequent liability. I have not found any adjudged case on this precise point; but, from the reason of the thing, and the analogy to cases where notes have been lost after they were endorsed, I think the action cannot be sustained, without proving that the note was destroyed.

Judgment affirmed.