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1822.

PADFIELD

BRINE,

belonging to the defendant in the hands of a third person? It was the duty of the sheriff, if he took in execution more than was necessary to satisfy the former execution with which he was charged, to pay over the surplus immediately to the defendant.” -So in Knight v. Criddle(a), the Court would not order the sheriff to retain, in satisfaction of a fieri facias, issued by the plaintiff against the defendant, money which the sheriff had before received for the use of the defendant, in discharge of an execution levied by the defendant against another, and which the sheriff had not paid over.

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The learned Serjeant was proceeding with his argument, when he was stopped by

The Court, who observed that there were no legal grounds for the application; that the case of Armistead v. Philpot bad been impugned by the two later decisions; and that in Willows v. Ball (), Lord Chief Justice Mansfield said, that that case had no weight, because the application was not resisted; and this Court there refused to order the sheriff to pay over the proceeds of a judgment recovered against him by the defendant, to the plaintiff, in satisfaction of his fieri facius. But as the costs were in the discretion of the Court, and as the case of Armistead v. Philpot was not stated to have been impugned when they required an affidavit as to the execution of the deed of assignment, they ordered the rule to be

Discharged without costs.

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1822.

Saturday,

CHAMPION and others v. TERRY.

May 18th.

gave the de.

indorsed the bill to the

Where the This was an action of assumpsit for goods supplied by plaintiff's traveller took a the plaintiffs to the defendant. The first count of the bill ofexchange declaration stated, that Messrs. John and William Firmfrom the defendant, to

stone, on the 5th April, 1821, 'made a certain bill of whom it was previously in- exchange, directed to Messrs. Spooner and Co., bankers, dorsed, in pays London, and thereby required them, four months after

goods sold, which

the date thereof, to pay to one Thomas Turton, or order, bill being of greater amount the sum of 1501.; that Turton indorsed it to the defendthan the price of the goods,

ant, and that the latter indorsed it to the plaintiffs. The the traveller

plaintiffs then averred, that when the bill became due, fendant the dif- payment was demanded of Messrs. Spooner and Co., but ference in bills, who

that neither they nor Messrs. Firmstone would pay the

same, of which the defendant had notice, whereby he plaintiffs in became liable to pay the plaintiffs the amount of the blank, and it was afterwards bill. The second count treated the instrument as a proinclosed in a letter addressed missory note. To these were added, counts for goods sold to them, and

and delivered, and the usual money counts. The deput into the post office, but fendant pleaded the general issue. their hands,

At the trial of the cause, before Lord Chief Justice and six months Dallas, at Guildhall, at the Sittings after the last Term, came due, the plaintiff's traveller proved, that previously to the 6th they sued the defendant as the June, 1821, the defendant had purchased goods from the indorser of the plaintiffs to the amount of 105l. 2s, 9d.; that on his being that the plain. called on by the traveller for the settlement of the ac, recover on such count on that day, which, after a deduction for cordage, proof of its de- was reduced to 1031. 11s. 4d., he gave the witness the struction or

never came to

bill or note in question for 1501., and received the differtotal loss; and that they were ence from him in other bills; that he indorsed the bill in also precluded from recovering blank to the witness, who on the following day inclosed the value of the goods on counts for goods sold and delivered ; as the defendant had given full value for the bill, and might still be compelled to pay its amount to a bonâ fide holder,

tiffs could not

1822.

CHAMPION

TERRY.

it in a letter with several others, which he put into the post-office at Birmingham, addressed to the plaintiffs in London, which letter was never received by them; and the bill in question, together with the others it contained, were lost, and never afterwards heard of. On the 2d August, 1821, the plaintiffs wrote a letter to the defendant, stating that the bill which would become due on the 8th, had never come to hand; and requesting him to inform them where the drawers resided, that they might write them, requiring their sanction to permit Messrs. Spoorer and Co. to pay them, on their giving a discharge and indemnification; to which the defendant merely replied, that he was sorry for the loss. A subsequent correspondence took place between the parties; and when the bill became due, application was made to Spooner and Co. for payment, who stated that they had received no orders to pay it; and on the 4th November the present action was commenced. No evidence was given by the plaintiffs that they had made any diligent enquiry for the bill, or that they had advertised its loss.

His Lordship was of opinion, that the bill was intended to operate as a payment of the sum due from the defendant to the plaintiffs, on account of goods furnished by the latter previously to the time it was given to their traveller; and that although it was improbable, under the circumstances, that the defendant would ever be called on to pay it, still that the plaintiffs were not entitled to recover its amount; and the jury accordingly found a verdict for the defendant; but his Lordship reserved the point for the consideration of the Court.

Mr. Serjeant Vaughan, on a former day in this Term, accordingly obtained a rule nisi, that this verdict might be set aside, and instead thereof, that a verdict might be entered for the plaintiffs for the amount of the bill; or that

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a new trial might be granted ; and submitted that the bill had not been received from the defendant by the traveller of the plaintiffs in discharge of their demand, but conditionally only; namely, in case it should come to hand, and be duly honoured when due; and that it could not amount to an absolute payment, unless the traveller expressly consented to accept it as such at the time. Although in Pierson v. Hutchinson (a) it was held, that no action at law could be maintained on a bill which had been lost, after being indorsed in blank, notwithstanding a bond of indemnity had been tendered to the defendant; yet there the action was brought against the acceptor, who was primarily liable, and continued so until it was paid.

Mr. Serjeant Pell now shewed cause. It is quite clear that the plaintiffs cannot maintain this action against the defendant on the bill, even if it had been proved to have been lost, as it was previously indorsed by the latter in blank to their traveller or agent. Although the decla. ration contains special counts on the bill, it did not appear at the trial that it was absolutely lost or destroyed; and it having been delivered to, and accepted by the plaintiffs' agent, if the defendant were held responsible in this action, he would be liable to pay its amount twice, as it might now be in the hands of a bona fide holder for value, who would be entitled to sue the defendant upon it, as the indorser. When he paid it over on account of the. plaintiffs, it was an available security, and received as such in discharge of the debt then due to them. It was, at all events, incumbent on the plaintiffs either to have produced the bill, or satisfactorily proved that it had been destroyed; for mere lapse of time is not of itself sufficient evidence of a loss or destruction. In Powell v.

(a) 2 Camp. 211.

1822.

CAAMPION

TERRY.

Roach (a) it was decided, that the indorsee of a bill which was uot produced at the trial, could not recover against an indorser, upon proof that the bill when due was taken to the acceptor, who had absconded without returning it, although the defendant had expressly promised to pay, if the bill could be produced. It must be presumed that the defendant gave value for the bill, and as it was lost after , he bad indorsed it over to the plaintiffs’ traveller, it deprived him of any remedy he might have had against the previous parties to it. Its delivery to, and acceptance by the plaintiffs’agent, were equivalent to payment to them; and the case of Pierson v. Hutchinson is decisive to shew that the plaintiffs cannot recover on the counts for goods sold, or the money counts; as, if they were allowed to do so, the defendant might not only be liable to pay the amount of the bill a second time, but would also be deprived of the value he had given for it in the first instance.

Mr. Serjeant Vaughan, in support of the rule, observed, that in Pierson v. Hutchinson, as in nearly all the previous cases, the action was brought against the acceptor, which made a most material difference, as he was liable, at all events; whereas an indorser is not so, without proof of his having received due notice of dishonour. Besides, it is doubtful whether the instrument in question was a bill or note; and the plaintiffs so treated it in their declaration. At all events, there was sufficient evidence for the jury to presume that it had been either lost or destroyed; for it was put into the post-office, with several others, at Birmingham, on the 7th June, and Do account whatever had been received of it to the day of the trial, por had any of those bills ever come to the plaintiffs' hands. In Long v. Bailie (6), where it was proved, that a person took a bill to have it compared with an affidavit to hold to bail; that a copy was then

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