Bond v. Whitfield

[217] By the Court. Jenkins, J., delivering the opinion. The defendant in error proceeded, simultaneously, (under the Act of 5th March, 1856, Pamph., 238), to establish a copy of a bill of exchange drawn by plaintiff in error, and to institute suit against said drawer, on the lost paper. The bill was drawn upon Sims & Cheever, and by them accepted, and had been noted for non-payment. On the trial of this case, the plaintiff below offered in evidence a certified exemplification of the proceeding to establish a copy of said lost draft, or bill of exchange. Erom this exemplification, it appeared that a formal order had been passed nem. eon., establishing a copy thereof. But it also appeared that Sims & Cheever, the acceptors, had not been made parties to that proceeding, and were, therefore, not bound by the judgment of the Court establishing it. In other words, there had been no copy of the lost paper established as to them. On this ground, the evidence offered was demurred to. The Judge overruled the demurrer, first, on the ground that the acceptors were not necessary parties to the exemplified proceeding; and secondly, on the ground that the objection came too late; should have been taken against the passage of the order in the exemplified proceeding, and this is the judgment excepted to. The object of the proceeding, under the Act of 1856, was to establish a copy of a lost paper, and that was the authority conferred by the act. What was the lost paper ? It was a draft or bill of exchange, drawn by Bond, the plaintiff in error, in favor of defendant in error, upon Sims & Cheever, by them accepted, and afterwards protested for non-payment. Such was the paper when lost. The proposition will scarcely be denied, that in legal contemplation, the established copy must have all the essential elements of the lost original. If it be a negotiable commercial security, the copy must specify the sum of money to be paid, and the time of payment. It must [218] have all the parties appearing upon the lost original. Their mutual relations and liabilities must be unimpaired. These are essential elements, and if they, or any of them be lacking, in the copy established, it is not an established copy of the original. In this case, it is conceded, that every thing was done necessary to the establishment of the copy, except as to the acceptance of Sims & Cheever, and the noting and protest for non-payment. Had the paper been lost before the acceptance of Sims & Cheever, what was done would have been sufficient to establish a copy. But it appears that it had been accepted by them. This acceptance, connected with this commercial security, a new party—a party assuming a primary liability, it materially varied the liability, and changed the relations of Bond, the drawer, as a party to the bill. After the acceptance, and loss of the paper, nothing is, nothing can be, a copy of it, which omits the acceptance. Even in what is called the established copy, appearing in this record, we find the words “ Sims & Cheever,” so written across the paper, as to denote the acceptance of persons to whose names those words answer. The defendant in error, or his counsel, could not get away from the idea that those names, occupying that position, in the original, must appear in the same position in the copy, and hence they were placed there. But the misfortune of the defendant in error is, that, as appeared by inspection of his own record, that portion of the copy was not established. It could not be established, without making Sims & Cheever parties to the proceeding. They were not made parties; therefore, in that proceeding, their acceptance was not established. The consequence is, that the paper, purporting to have been established, was not established, as a copy of the lost original. That had elements, had parties, which this has not. In that the relative liability of the plaintiff in error was different from what it is in this. It is no answer to say that it was established against Bond, who was the only party défendant below. The privilege given by the Act of 1856, to the party losing the original, is to establish a copy of it, and then to use that copy as he [219] might have used the original. But before he can so use it, he must, in the form prescribed, have established a copy of it. It was not to be a copy in hoec verba et litera, but it must be a copy in substanee. The parties to the paper, and their relative liabilities, are matters of Substance. Under this act, there can be no recovery against a party secondarily liable upon a copy which does not also fix the liability of the party primarily liable. But it is said this exception comes too late; that the plaintiff in error should have taken it in the proceeding, the exemplification of which was here tendered in evidence. In our view, this is no reply. We think there is an inherent defect in this paper, originating in the failure of the defendant in error to comply with the requisitions of the remedial Act of 1856, the aid of which he invokes. In this case he has chosen to rely, as his cause of action, upon a copy of a lost paper, established under the Act of 1856, but when he offers his evidence, it appears upon its face that it is pot an established copy of the lost original. He might have made it so, but he did not. Having failed to comply with the requisitions of the act, he cannot claim its benefit. The judgment of the Court below must be reversed. Judgment reversed.