Devlin v. Clark

Scott, Judge, delivered the opinion of the court. The court in this case gave the following instruction: “ If the defendants, as bankers, retained the possession of the bill in question, after its presentation and protest, in order that they might pay it if funds of the drawer should come into their hands, and if, while in their possession, the bill was lost by the carelessness or negligence of defendants or their agents, and defendants failed to make any effort to stop the payment thereof, and also failed to notify the plaintiff or his agents, or to make any effort to notify him or them, until after the bill had been presented to the drawer and paid to some other person, then the plaintiff is entitled to recover, and the measure/! damages is the amount of the face of the bill with sis per cent, interest thereon from the commencement of the suit.” “The party in possession of a negotiable instrument is prima facie the owner of it, but as soon as it is shown to have been lost or stolen from the true owner, the presumption is changed, and he must then show, not only what consideration he gave for it, but also that he took the paper in good faith in the ordinary course of business; after that, the party resisting payment may undoubtedly reply impeaching the good faith of the transaction, which he may do by either direct or circumstantial evidence that the plaintiff acted in [24] bad faith in taking the bill.” (Edwards on Bills, 310.) Under this view of the law, we are of the opinion that the instruction should have called the attention of the jury to the inquiry whether the drawer of the bill did not take it up in bad faith. As the bill was dishonored, it was the drawer’s duty to pay it. But as it was lost, the onus was on the plaintiff in this action to show that the drawer acted in good faith in taking it up. In this matter we see no difference between the drawer, who has paid a lost bill, and any other holder. We have thought it proper to say this much in regard to the instruction, lest it might be thought we deemed it correct ; but as it was not excepted to, the judgment can not be reversed on account of it. Moving for a new trial on the ground of erronous instructions is not sufficient under our practice, which has always required exceptions to instructions to be taken when they are given. As to the objection that the bill was not endorsed, that was a fact in the case, and as it has been found by the court, we can not interfere. The fact that the bill was paid by the drawer was evidence that it was worth the sum for which it was drawn. Affirmed. The other judges concur.