Where it is so specially indorsed, an action may perhaps be brought thereon. (69) Where the person paying is entitled to require an indemnity, the only remedy on a lost bill is in equity: a court of equity can enquire into the sufficiency of an indemnity; a court of law cannot. The acceptor is not liable to be sued upon a lost bill, if the loss was before the bill was due, though he promises to pay it after knowing of the loss, unless there is some new consideration for such promise. (70) The holder's only remedy is to enforce the giving a new bill under the statute. (70) If a bill is lost after action brought thereon, and defendant suffer judgment by default, the court payable to the order of the drawer, and by him specially indorsed to the plaintiffs. It was proved that a person took the bill to have it compared with the affidavit to hold to bail, that a copy was then taken, and that the bill was afterwards stolen from such person. The correctness of this copy and the special indorsement were proved, and upon this the plaintiffs had a verdict. (70) Davis v. Dodd, 4 Taunt. 602. Action on bill payable to Allen or order, accepted by defendant, and indorsed generally to plaintiff: plaintiff lost it before it was due, but defendant after knowing of the loss, promised repeatedly to pay it. Lord Ellenborough however held the action not maintainable, and nonsuit; and on motion for a new trial, the court agreed with him: they thought defendant under no moral obligation to pay plaintiff, who by his negligence had exposed defendant to the danger of being compelled to pay another holder, and that his subsequent promise, there being no new consideration, was nudum pactum: they said, enforcing the giving a new bill under the statute, seemed to be plaintiff's only course. Law Library University of Chicago. will, on a copy verified by affidavit, refer it to the master to see what is due thereon; (71) Especially if the bill has been shewn to defendant, and he has admitted his signature, and promised payment. (71) But if the bill is lost after action brought, and defendant resists the action, and puts the plaintiff to prove the bill, the loss will be no excuse for the non-production of the bill, and plaintiff will not be able to recover. (72). And it will make no difference though the bill is of so old a date that the statute of limitations has attached upon it. If a bill or note transferable by delivery is cut in halves, and half lost, the holder cannot sue at law upon the other half. Payment at law cannot be enforced unless the entire instrument is produced, or unless there is proof that the entire in (71) Brown v. Messiter, 3 Maule. 281. The acceptor of a bill desired to see the bill, and then he admitted the acceptance, and promised payment; he suffered judgment by default; and the bill having been stolen from plaintiff's attorney's pocket, rule nisi to refer on production of copy verified by plaintiff's attorney, and no cause being shewn, rule absolute. (72) Poole v. Smith, Holt. 144. In action by indorsee against acceptor, it appeared that a few days before the trial the bill was picked out of the pocket of plaintiff's attorney's clerk; and that defendant had admitted the acceptance, but said it had been satisfied between him and the drawer: the bill had been due above six years. Gibbs C. J. thought the non-production of the bill called upon him to nonsuit plaintiff, and that the statute of limitations made no difference: he said the rule was strument, or whatever part of it is wanting, has been destroyed. (73) A special count upon a bill or note states in their order all the facts necessary to maintain the action. To give a full idea of this count, and open the way to the observations necessary to be made upon it, I shall insert a comprehensive one in assumpsit upon a foreign bill, which will sufficiently elucidate those on inland bills or notes, and those in debt. Count in assumpsit upon a Foreign Bill. London } John Mills v. Thomas Roper and Steto wit. phen Howe. For that whereas on (1) the 1st day of January, 1789, at (2) London aforesaid, in the parish of St. Mary le Bow, in the ward of Cheap, certain persons (22) using the style and firm of Gaunt and Co. according (3) to the usage and custom of merchants, from time immemorial used and approved of, made (4) their certain bill (73) Mayor v. Johnson, 3 Campb. 324. Plaintiff's traveller took a 5l. country bank-note, payable at Stamford or London, and cut it in halves, and sent the two halves to plaintiff; one half only arrived, the mail containing the other was stolen : plaintiff sued on the half which arrived; but as plaintiff could not shew that the other half was destroyed, Lord Ellenborough held the action could not be supported, and nonsuit. N. He assigned as a reason, that the stolen half might immediately have got into the hands of a bonâ fide holder for value, and that such holder would have had as good a right as plaintiff: but, quære-If a man who takes half a note does not take it at his peril, of exchange in writing, their (5) copartnership, stile, and firm aforesaid, being thereunto subscribed, bearing (6) date the day and year aforesaid, and (7) directed to one Henry Hunt, at Venice, in Italy, in parts beyond the seas, and (8) thereby requested the said Henry, at double usance, to pay in Venice (82) that their first of exchange (second (9) and third of the same tenor not paid) to the said (92) Thomas and Stephen, or (10) their order, a certain sum of foreign money, (102) called in the said bill seven hundred ducats, value (103) received, and then and there (104) delivered the said bill to the said Thomas and Stephen, which (11) said bill the said Henry Hunt, afterwards, to wit, on (12) the day and year aforesaid, at Venice, to wit, at London aforesaid, in the parish and ward aforesaid, on sight thereof, duly according to the usage and custom of merchants accepted, payable at A. B. and Co.'s, Venice (122); and the said Thomas and Stephen (123) afterwards and before the payment of the said sum of money in the said bill mentioned, or of any part thereof, to wit, on the day and year aforesaid, at London aforesaid, in the parish and ward aforesaid, by their certain indorsement in writing then and there made upon the said bill, (124) their proper hands being thereunto subscribed, according to the usage and custom of merchants, appointed the (13) contents of the said bill to be paid to one Peter White, or (14) his order, and then and there delivered the said bill so indorsed to the said Peter; and (15) the said Peter afterwards and before the payment of the said sum of money in the said bill mentioned, or of any part thereof, to wit, on the day and year aforesaid, at London aforesaid, in the parish and ward aforesaid, by his certain indorsement in writing then and there made upon the said bill, his proper hand being thereunto subscribed, appointed the contents of the said bill to be paid to the said John, and then and there delivered the said bill so indorsed to the said John, of (16) which said indorsements the said Henry afterwards, to wit, on the day and year aforesaid, at London aforesaid, in the parish and ward aforesaid, had notice; and the said John in fact says, that (17) an usance mentioned in any bill of exchange drawn in London and payable in Venice, is, and at the several times aforesaid was, three calendar months from the date of the said bill, and no other time whatever; and (18) that afterwards, and when the said bill had according to the tenor and effect thereof become payable, to wit, on (19) the 4th day of July, in the year aforesaid, at Venice aforesaid, to wit, at London aforesaid, in the parish and ward aforesaid, the said bill was duly, according to the usage and custom of merchants, and according to the tenor of the said acceptance thereof, shewn and presented to the said Henry at A. B. and Co.'s aforesaid, at Venice aforesaid for payment; and the said Henry was then and there requested to pay the said sum of money in the said bill mentioned, but the said Henry did not then (192) or there pay the said sum of money in the said bill mentioned, or any |