Hinsdale v. Miles

Peters, J. In an action of assumpsit, by the indorsee, against the indorser, of a negotiable note, payable at the office of discount and deposite of the United States’ bank in Middletown, on the 26th day of May, 1821, the plaintiffs averred, that they presented the note, and demanded payment at the time and [334] place when and where it was made payable, whereof the defendant had notice ; and that the note was lost by time and accident. In support of this declaration the plaintiffs offered, and the judge admitted, the testimony of a notary, that at said time and place, he presented a copy of the note, demanded payment, and gave notice of non-payment to the defendant ; also evidence that the note was lost, on the 26th day of February, 1821 ; for which the defendant claims a new trial. The questions presented by this motion, must be admitted to be inter apices juris. The defendant contends, first, that proof of loss in February, is inconsistent with the allegation of presentment in May : secondly, that evidence of presenting a copy, does not support the averment of presenting the note. In an action upon a specialty, a profert must be laid, or a reason given for the omission. Dr. Leyfield’s case, 10 Rep. 88. Reed v. Brookman, 3 Term Rep. 151. Though it is said by Lord Coke, in Dr. Leyfield’s case, “ That in great and notorious extremities, as by casualty of fire, that all his evidences were burnt in his house ; there, if that should appear to the judges, they may, in favour of him who hath so great loss by fire, suffer him, upon the general issue, to prove the deed by witnesses :" yet in an action on a simple contract, a profert is not necessary. A reason for the omission is, therefore, unnecessary. This note is not a specialty, nor a debt; but merely evidence of a collateral liability arising out of a simple contract. Vide Coleman v. Wolcott, 4 Day 388. Bank of the United States v. Sill, 5 Conn. Rep. 102. 1 Chitt. Plead. 349. Swift's Ev. 339. If the averment of loss was unnecessary, the time of the loss was immateria l; and proof of a loss at the commencement of the action and time of trial, was sufficient. The loss of a bill or note alters not the rights of the owner, but merely renders secondary evidence necessary and proper ; and a demand of payment of a lost note, is equally available as of a note in possession. Chitt. Bill, 195. (Phil. ed. 1821.) cites Thackray v. Blackett, 3 Campb. 164. Impossibility of presenting a note at the time of maturity, may be given in evidence under the usual averment that the note was duly presented. Chitt. Bills 309. cites Patience v. Townley, 2 Smith’s Rep. 223. I, therefore, do not advise a new trial. Brainard and Bristol, Js. were of the same opinion. [335] Hosmer, Ch. J. being related to one of the parties, gave no opinion. New trial not to be granted.