16 W. Va. 546 | W. Va. | 1880
delivered the opinion of the Court:
The first and second errors assigned by the appellant are together substantially, thát the court erred in overruling the demurrers to the original and amended bills. The appellant’s third, assignment of error is as follows:
Adams in his excellent work on equity at side page 168 and top page 382, fourth American ed., says : “ If however the bill or note be negotiable, it.follows that a plaintiff alleging it to have been lost may in fact have assigned it to a third party, against whose claim the court of law cannot indemnify the debtor. For this reason it is held at law, that a plaintiff suing on a negotiable instrument shall not recover the amount, unless he deliver’s up the security. And therefore a court of equity, which can enforce a proper indemnity from the plaintiffs will entertain jurisdiction to compel payment, on such indemnity being given. If the security be not negotiable, its loss will not prevent the creditor from recovering at law, and will not therefore create a jurisdiction in equity.”
In the case of the Bank of Virginia v. Bland, 6
In the case of Farmers’ Bank of Virginia v. Reynolds, 4 Rand. 186, the bill contained substantially the same averment as in the case last cited ; but still it does not appear from the report that the bill contained an offer to give “ a proper indemnity under the direction of the court.” And in this case the Court of Appeals held, that “when a bank note is cut in two, and one half sent by mail and lost, the holder of the remaining half has a right to demaud payment at the bank upon presentation of the half in his possession, proving ownership, and giving bond with adequate security for the indemnification of the bank. But if these prerequisites are not complied with, and the bank is sued in consequence of refusing payment, the holder shall not recover interest or costs, although he may perform the conditions after the suit is brought.” See opinion of the court in the case.
In the case of the East India Co. v. Boddam, 9 Ves. 464, which was a bill setting up a lost bond, it appears, that the plaintiff in the bill offered indemnity as the court should direct. And so in the case of Tereese v. Qeray, Finch’s R. 301; and so in the case of Mossop v. Eadon, 16 Ves. Jr. 430.
In the case at bar there is a total failure on the part of the plaintiff to prove the loss of the negotiable note in the bill mentioned. In fact it may in truth be said^ that the plaintiff has made no effort whatever to prove the loss of said note. No evidence tending to prove that fact appears in the record of the cause, as it is before us; and no evidence appears tending to prove the loss of the alleged certificate of protest. There are other insuffi-ciencies and defects in the plaintiffs evidence as against the endorsers of said note in the bill mentioned, but it is immaterial and unnecessary to specify or further refer to them, as they are immaterial in the absence of proof as to the loss of said negotiable note.
For the foregoing reasons there is error in the said decree of the circuit court of the county of Barbour, rendered in this cause on the said 7th day of March, 1868; and the same must therefore be reversed, and the appellee, The Exchange Bank of Virginia, pay to the appellant, Lair L. Morral!, his costs about the prosecution of his appeal and supersedeas in this cause in this Court expended. And this Court proceeding to render such decree as said circuit court should have rendered, it is, for the reason that the plaintiff has failed to prove the loss of the negotiable note in the bill mentioned, adjudged, ordered and decreed, that the plaintiffs’ original and amended bills
Decree Reversed.