J 822. CHAMPION v. TERRY. taken, and the bill afterwards stolen from such person: on proof that the copy was correct, and that the drawer had indorsed it specially to the plaintiffs, they had a verdict. So here, there was reasonable ground to infer that the bill had been lost; and a mere delivery of it by indorsement, is not equivalent to payment, as it only attaches a liability on the indorser, in case of the nonpayment or dishonour by the previous parties. Lord Chief Justice DALLAS.-The rule is, that in general, no action at law can be supported against a party to a bill or note indorsed in blank, so as to be transferrable to a bona fide holder, and lost before it is due, although a bond of indemnity has been tendered to the defendant. That was decided by Lord Eldon, in Er parte, Greenway (a), and adopted by Lord Ellenborough in Pierson v. Hutchinson, who there also held (b), that if a plaintiff can neither produce a bill, nor prove that it is destroyed, he must go to a Court of Equity for relief, and cannot resort to the common money counts. Here, it must be taken for granted, that the defendant was the holder of the bill for a valuable consideration, for no evidence whatever was given to impeach its validity at the trial. By his indorsing and paying it over to the plaintiffs' agent or traveller, he lost any right or remedy he might have had against the previous parties to it; and if the plaintiffs should be held to be entitled to recover in this action, the defendant would still be liable to a bonâ fide holder. Why did not the plaintiffs apply to the drawers? By the statute 9 and 10 Will. 3. c. 17. s. 3, it was provided, that "if any inland bill be lost or miscarried within the time limited for its payment, the drawer shall, on security given upon request to indemnify him if such bill shall be found again, give another bill of the same tenor with the first." And it seems that the equity of this statute comprehends indorsements also (a). Besides, the plaintiffs gave no notice of the loss, either by advertisement or otherwise, nor did they give any evidence that they had caused any enquiry to be made respecting it. The defendant was not only liable as the indorser, but had his remedy over against the previous parties to it as for any thing that appeared to the contrary, he' had given full value for it; but by his delivering it to the plaintiffs' agent, he lost such remedy altogether. In Dangerfield v. Wilby (b), where a promissory note was' given for money due from the defendant to the plaintiff, who declared on it, together with the common money counts; Lord Ellenborough held, that it was incumbent on him to shew that it was lost, so that the defendant should not be again subjected to the payment of it, before the plaintiff could have recourse to the money counts, if it appeared that the money so claimed was that for which the note was given. Here, it appears that the bill in question was taken by the plaintiffs' traveller, in payment for goods previously furnished to the defendant; and I do not think that the plaintiffs can turn round and seek to recover from the defendant on the counts for goods sold and delivered, as by so doing, he might be twice subjected to the payment of the same demand. Mr. Justice PARK.-The special counts, as founded on the bill or note, appear to me to be entirely out of the question, as they contain no averment of presentment, nor was the bill ever presented where it was made payable. The rule laid down by Lord Eldon in Ex parte Greenway, was not only afterwards adopted by Lord Ellenborough in Pierson v. Hutchinson, but Lord Chief Justice Gibbs, in Poole v. Smith (c), observed, that "it was (a) See Bayley on Bills, 3d edit. 52.- (b)4 Esp. Rep. 158.- (c) Holt, Ni, Pri. Cas. 145. 1822. CHAMPION ບ. TERRY. 1822. CHAMPION v. TERRY. an extremely salutary rule, and ought not to be relaxed." And in Davis v. Dodd (a), where a bill was lost, and the defendant repeatedly and expressly promised to pay it, Lord Ellenborough directed a nonsuit, as the bill was not produced at the trial; and the Court afterwards refused to set it aside, as there was no moral obligation on the defendant to pay. Mr. Justice BURROUGH.-The traveller of the plaintiffs, by taking the bill from the defendant, suspended the payment of the debt originally due from him to them, until such bill became due. From the evidence adduced at the trial, it would be too much for the Court now to presume that it was actually destroyed, the effect of which would be, to put an end to the defence to the action altogether. The plaintiff should either have shewn that it had been lost or destroyed, or produced it, or they might have proceeded to have required the drawers to give a new bill, under the statute of William 3; but as they have not done so, they must be confined to a Court of Equity for relief, and give a sufficient indemnity, which can be more clearly ascertained there than at law. Mr. Justice RICHARDSON.-The defendant never received any notice of the dishonour of the bill; and he could not be liable as the indorser, as it was never presented for payment at the place to which it was directed. The plaintiffs, however, sought to recover on the counts for goods sold; to which the defendant set up the bill as an answer, and for which, for any thing which appears to the contrary, he had given full value. When he indorsed it over to the plaintiffs' agent, he lost any remedy he might have had against the drawers and previous parties to it and although it has been stated, that as he was (a) 4 Taunt. 602, merely the indorser, it distinguished this case from that of an acceptor; still it appears to me, that such a distinction is founded in fallacy. He was the bonâ fide holder of the bill at the time of the indorsement, and was liable to pay the plaintiffs as such indorser, in case the bill had been dishonoured by the drawers, or the previous indorsees; and as he had previously given value for it, and was deprived of any remedy he might have had against those persons, I am of opinion that the plaintiffs are not entitled to recover; and more particularly so, as they gave no evidence of the loss or destruction of the bill at the trial. Rule discharged. 1822. CHAMPION V. TERRY. DUNN v. CRUMP. THIS was a writ of false judgment from the county court of Worcester. The declaration contained two counts, the first of which stated, that the defendant, on the 1st January, 1821, at Eclington, in the county of Worcester, and within the jurisdiction of that Court, was indebted to the plaintiff in 39s. of lawful money of Great Britain, for the work and labour, care and diligence, of the plaintiff, by him before that time, and within the ju risdiction of that Court, done, performed and bestowed, at and applied on those occasions :-On a writ of false judgment, assigning that it did not appear that the potions, &c. were applied by the plaintiff on the occasions therein mentioned, within the jurisdiction of the court, and that the consideration for the promises was not stated to have arisen there :-Held, that this amounted to a sufficient allegation, that the potions were administered within the jurisdiction :-And where the jury assessed the plaintiff's damages, besides his costs and charges, at 11. 8s. 6d., and those costs and charges at 12d., and judgment.was entered up, that the plaintiff do recover against the defendant his damages, costs, and charges in form aforesaid assessed by the said jury at 11. 8s. 6d. ; and also 71. 9s. 10d. for his costs and charges aforesaid, adjudged of increase to the plaintiff, and with his assent, which said damages in the whole amount to 81. 18s. 4d. Held, that the judgment was complete for the damages, costs, and charges assessed by the jury, without the words at 14. 8s. 6d.," which being a mere miscalculation and unnecessary, might be rejected as surplusage. 1822. DUNN บ. CRUMP. the special instance and request of the defendant, in and about the curing and healing of divers horses, mares, and geldings of the defendant, of divers diseases, disorders, and maladies, under which they had before then respectively laboured and languished; and in and about the endeavouring to heal and cure divers other horses, mares, and geldings of the defendant of divers other diseases, disorders, and maladies, under which they had before then respectively laboured and languished ; and for divers potions, draughts, ointments, medicines, and other necessaries, used, administered, and applied on those occasions by the plaintiff, at the like request of the defendant: And being so indebted, he the defendant, in consideration thereof, afterwards, to wit, on the same day and year aforesaid, at Eclington aforesaid, and within the jurisdiction of that Court, took upon himself and faithfully promised the plaintiff to pay him the said 39s., whenever afterwards he the defendant should be thereto requested. The last count was on a quantum meruit, and in which it was stated that the plaintiff had found and provided, administered and applied divers other potions, draughts, ointments, and medicines, other necessaries on those occasions. The defendant pleaded the general issue; upon which issue was joined. The jury found that the defendant did undertake and promise, in manner and form as the plaintiff had above thereof complained against him, and they assessed the plaintiff's damages, besides his costs and charges by him laid out about his suit in that behalf, at the sum of 17. 8s. 6d.; and those costs and charges at the sum of 12d.; and thereupon the plaintiff prayed the judgment of the Court, which was as follows, viz.-It is considered in and by the same Court here, that the plaintiff do recover against the defendant his damages, costs, and charges in form aforesaid, assessed by the said jury at 11. 8s. 6d., and also 77. 9s. 10d. for his costs and charges aforesaid, by the said Court here adjudged of increase to |