Bank of the United States v. Sill

Peters. J. The plaintiffs in error contend, 1. That the facts alleged and found, are not a sufficient foundation for the admission of secondary evidence, to supply the want of a profert. 2. That the loss or destruction of the bill proceeded from the voluntary act of the defendant in error. 3. That the plainti [111] ffs in error are not liable, in any event, after the publication of their determination not to pay “ cut notes,” unless all the parts are produced. As to the first exception, it is a well settled rule, that in declaring upon simple contracts, a profert is not necessary; and its omission is a mere matter of form, and can be taken advantage of only by a special demurrer. 1 Swift's Dig. 675. 1 Chitt. Plead. 349. Salisbury v. Williams, 2 Salk. 497. An excuse for the omission is, therefore, unnecessary. But an excuse has been alleged and found ; was this sufficient to introduce secondary evidence ? If it was improperly admitted, the remedy is a motion for a new trial. It is no ground for error. 3 Day, 29. But it is said, that the bill is not lost or destroyed, but only mislaid In Beckford v. Jackson, 1 Esp. Rep. 337. the plaintiff counted on a deed as “ lost or mislaid,” upon which, issue was taken ; and the same was recognized by Lord Kenyon, as warranted by law ; and by the court for the correction of Errors in New-York, (Livingston v. Rogers, 1 Caines’ Cases in Error xxvii.) proof by a witness, that the paper in question wag thrown aside as useless, and that he believes it lost or destroyed, will be sufficient to let in secondary evidence. 1 Phil. Evid. 347. & seq. Rex v. Johnson, 7 East, 66. Kensington v. Ingliss & al. 8 East, 273. 2. It is said, that the loss or destruction of the bill proceeded from the voluntary act of the defendants. When the holder of a bill voluntarily and intentionally destroys it, or alters it fraudulently, he has no remedy; but if he loses, cancels, alters, or destroys it, by accident or mistake, his rights are not affected; his evidence only is impaired. A bill or note is not a debt; it is only primary evidence, of a debt; and when this is lost, impaired or destroyed bona fide, it may be supplied by secondary evidence. Was this bill divided and into the post-office, with a view to abandon or destroy if, or to defraud the bank ? The verdict expressly finds, that this was done solely for the purpose of transmitting it from Ohio to Connecticut by mail, the most usual, safe and expeditious mode of remittance. The act was, indeed, voluntary ; hut the intent was to preserve. Where, then, is the evidence of voluntary, negligent or fraudulent loss, or destruction of the bill ? But it is contended, that the bank is equally liable to the bona fide holder of the other moiety. This would be true, if the moiety of a bill were negotiable. Cases innumerable are found [112] in the book, where a party may recover, who has lost the primary evidence of his claim; but not, if it be negotiable, unless it be destroyed, 1 Phill. Evid. 347. & seq.—and cases there cited. For, the bona fide receiver or holder of negotiable paper without notice, is always safe. Miller v. Race, 1 Burr. 452. But a part of a bill is not negotiable; and the holder cannot recover noon it, without proving a title to all the parts. In the present ease, the plaintiff is the possessor and bearer of one moiety, and proves himself the owner of the other; which the possessor or hearer of the last moiety can never do. lie must have received it with notice, that the other moiety belonged to somebody else; and taken it, not on the credit of the bank, but of the bearer, to whom alone he can look for indemnity. Of all the authorities, which have been cited, by the plaintiffs’ counsel, one only is in point; for the case of Master & al. v. Miller, 4 Term Rep. 320. so much relied on, has no bearing on the case. It was an action by the indorsees, against the acceptor of a bill, the date of which the jury found, had been altered after acceptance, while in the hands of the payees, so as to accelerate the lime of payment; and I the court, very properly, adjudged it void. But the case of Mayor & al. v. Johnson & al. 3 Campb. 324. is directly in point. In that case, judgment was rendered for the defendant, by Lord Ellenborough, on the ground, that the last half of a bank bill was negotiable, and would enable a bona fide holder to recover of the bank; which, with all due deference to an illustrious judge, I am bound to say, is not law. As well might a vignette, or any other fragment torn from a bill, be considered negotiable. The only apology, I can make for his lordship, is, that he was on the circuit, where business is done in haste, without time and means for investigation and consideration, and where the greatest judges frequently err. “ Quandoque bonus dormitat Homerus.” 3. The last exception is as extraordinary as it is novel; and is probably the first instance of a debtor’s undertaking to prescribe terms to his creditors. It is a sufficient answer to this objection, that their notice never came to tin; knowledge of the defendant in error, though it was published in the Philadelphia newspapers, at the distance of two hundred miles. All the questions presented by this record, have been repeatedly decided, by American courts; and the case of Mayor & al. v. Johnson & al. has been expressly overruled. In Patton v. State Bank, and Idem v. Bank of South Carolina, on a similar State of facts, the constitutional court of South Carolina decided. [113] that the cutting or severing of a bank bill destroyed its negotiability; that the bonafide holder of a part, who owns the whole, can enforce payment; and that the bearer of a part only, has no claim on the bank, because he cannot prove title to all the parts, and he receives it with his eyes open. 2 Nott & McCord’s Rep. 464. In Arma v. Union Bank, 16 Niles’ Register, 360. the circuit court for the district of Columbia, decided, that the half of a bank bill is not negotiable; and that the holder of a part, owning the whole, is entitled to recover. And in a more recent case, Martin v. Bank of the United States, circuit court, Penn. district, Oct. 1821, upon the precise statement of facts contained in the verdict in question, Judges Washington and Peters (b) rendered judgment for the plaintiff, not in the hurry of a nisi prius trial, as has been suggested in argument, but upon a solemn review of all the cases on this subject, especially of a previous decision of their own, and of Patton v. The State Bank. With these decisions, I entirely concur; and am, therefore, of opinion, that there is no error in the judgment complained of. Chapman, Brainard and Bristol, Js. were of the same opinion. Hosmer, Ch. J. declined giving any opinion. Judgment affirmed. Footnotes [(b)] Vide National Gazette, January 19, 1822.