Mƒ€™DONNELL v MURRAY

• Jurisdiction: Ireland
• Judgment Date: 15 June 1859
• Date: 15 June 1859
• Court: Exchequer (Ireland)

Exchequer.

Mƒ€™DONNELL

and

MURRAY.

Charnley v. GrundyENR 14 C. B. 608.

Wain v. Bailey 10 Ad. & Ell. 616.

Raphael v. Bank of EnglandENR 17 C. B. 161.

Wookey v. PoleENR 4 B. & Ald. 1.

Hansard v. RobinsonENR 7 B. & C. 90.

Walmsley v. Child 1 Ves. 341.

Glynn v. The Bank of England 2 Ves. 38.

Tercese v. Geray Finchƒ€™s Rep. 301.

Ex parte Greenway 6 Ves. 811.

Macartney v. GrahamENR 2 Sim. 285.

Davies v. DoddENR 4 Price, 176.

Cockell v. BridgemanENR 4 Beav. 499.

Wright v. Lord MaidstoneENR 1 Kay & J. 701.

Poole v. SmithENR Holt, 144.

Bevan v. HillENR 2 Camp. 381.

Davis v. DoddENR 4 Taunt. 602.

Brown v. MessiterENR 3 M. & S. 281.

Pooley v. Millard 1 Cr. & Jer. 411.

Champion v. Terry 3 Brod. & B. 295.

Maynor v. JohnsonENR 3 Camp. 324.

Pierson v. HutchinsonENR 2 Camp. 211.

Woodford v. Whiteley Mood. & Mal. 517.

Rolt v. WatsonENRENR 4 Bing. 273; S. C., 12 Moore, 510.

Hansard v. Robinson and Ramuz v. CroweENR 1 Exch. 167.

Wain v. Bailey 2 Per. & D. 507.

Charnley v. GrundyENR 14 C. B. 608.

Clay v. CroweENRENR 8 Exch. 295; S. C., in Error, 9 Exch. 604.

Walmsley v. Child 1 Ves. 341.

Glynn v. The Bank of England 2 Ves. 38.

Miller v. RaceENR 1 Burr. 452.

The Guardians of Lichfield Union v. GreeneENR 1 H. & N. 884.

Popham v. Lady AylesburyENR Amb. 68.

Downing v. TownsendENR Amb. 280.

Fleming v. Brook 1 Sch. & Lef. 318.

Mayor v. JohnsonENR 3 Camp. 324.

Charnley v. GrundyENR 14 C. B. 608.

Mossop v. Eadon 16 Ves. 430.

Miller v. RaceENR 1 Burr. 452.

Camidge v. AllenbyENR 6 B. & C. 373.

Robson v. Oliver 10 Q. B. 704.

Grant v. VaughanENR 3 Burr. 1516.

Beven v. HillENR 2 Camp. 181.

Robson v. BennettENR 2 Taunt. 388.

COMMON LAW REPORTS. 495 us, to sustain that finding, and now consents to have it struck out M. T. 1859, . from the verdict. The argument, at both sides, was applied to the Exc hequer rest of the finding. The portion relating to damages will, accord- RYAN v. ingly, be struck out, and the rest of the verdict will stand, and the LAN:nits. plaintiff will have judgment for his costs. It would seem, from the language of the 202nd section, that the inquiry as to mesne rates is accessorial to the inquiry as to title, and only to take place when the plaintiff is found entitled to the lands. It is unnecessary, howÂever, to express any opinion on this subject (which was not disÂcussed in the argument before us), since the plaintiff waives all claim to damages in this action, and only seeks to retain the other portion of the verdict, under the 204th section, with a view, solely, to obtain a judgment for his costs. M'DONNELL v. MURRAY. T. T 1859. May 26, 27. June 15. Tms was an application on the part of the plaintiff, Edward M`Donnell, that the defendant, Robert Murray, the public officer of the Provincial Bank of Ireland, might be restrained from setting up the loss of the promissory notes in the several paragraphs of the summons and plaint mentioned, or any of them, as a defence to the causes of action therein mentioned, or any of them; the plaintiff offering to give an indemnity, to the satisfaction of the Court, against the claims or claim of any person or persons upon said promissory notes. It appeared that the action was brought to recover the sum of £350, the amount of seven bank-notes for £50 each, of the ProÂvincial Bank of Ireland, issued at Newry, and which had been lost by the plaintiff. The summons and plaint contained seven counts or paragraphs, and the first count was as follows :-" For that the " said Provincial Bank of Ireland, on the 15th day of April 1847, "by their promissory note, No. 45, commonly called a bank-note, 496 COMMON LAW REPORTS. T. T. 1859. " promised to pay the bearer, on demand, £50 at Newry, and Exchequer. " negotiated the said note, and the plaintiff became and was the M4DONNELL " bearer thereof, and, as such, entitled to the payment of said note MURRAY. " on demand ; but the said Provincial Bank of Ireland did not pay "same to the plaintiff, although a demand was duly made upon "them at Newry for that purpose." The affidavit grounding the motion, which was the joint affidavit of the plaintiff and his attorney, stated that, on the 29th day of April 1856, the plaintiff was the owner, and possessed of the seven bank-notes upon which the action was brought ; and that the notes were lost by the plaintiff on the afternoon of said day, or on the next morning ; that circulars cautioning the Bank against the payment of the notes, and offering a reward for their recovery, were duly issued ; and that said notes were never paid, nor presented for payment. The affidavit then stated that demands had been made for payment of the notes both in Dublin and Newry, and that an indemnity upon lands in the county of Armagh, held under an Incumbered Estates Court title, had been offered by the plaintiff to the Bank against all claims upon said notes ; but, that the defendant, although he did not object to the sufficiency of the indemnity, refused to pay the amount of the notes without their production. F. Macdonogh (with him A. Close), in support of the motion. We submit that this is an action founded upon a "negotiable instrument," within the meaning of the 90th section of the Common Law Procedure Act 1856, and that the defendants should be reÂstrained from setting up the loss. If the instrument were not negotiable, there would be no necessity for the plaintiff to apply to the Court ; for then a special plea, setting up the loss of the note, would be no defence to an action founded upon it : Charnley Grundy (a); Wain v. Bailey (b). It is because a bank-note is a negotiable instrument that its loss is available as a defence. A bank-note is nothing but a promissory note made by a banker, and which may be, and generally is, payable to bearer on demand, and as such is transferable by mere delivery : Smith's Mercantile Law, (a) 14 C. B. 608. (b) 10 Ad. & Ell. 610. COMMON LAW REPORTS. 497 pp. 206, 216 ; Chitty on Bills, •10th ed., pp. 6, 351, 352. All T. T. 1859. LExchequer.,4 promissory notes, including bank-notes, were made negotiable by the DOI 8 Anne, c. 11 (Ir.), and placed on the same footing as inland bills DeNNELL of exchange. The 19 & 20 G. 3, c. 25, s. 11 (Jr.), recited the MURRAY. inconvenience to commerce that had arisen from mercantile comÂpanies not setting forth in their " promissory notes" the persons of whom such companies consisted, and enacted that for the future the names of the partners should be set forth in their "promissory notes." That Act was repealed by the 6 G. 4, c. 42, which introduced the Joint-stock banking system, but the character of the security was not altered. On the contrary, the 2nd section of that Act enacted that societies of persons of more than six in number might be bankers in Ireland, at places fifty miles from Dublin, and issue "bills and notes payable on demand," &c. Bank-notes are similarly described in the 4th section. The 8 Anne, c. 11 (Ir.), which placed promissory notes on the same footing as inland bills of exchange, enacts, in its Sth section, that all notes in writing, after the 1st of September 1709, 'made and signed by any person or persons, or by the servant or agent of any banker, &c., whereby such person should promise to pay to any other person, or order, or unto bearer, any sum of money menÂtioned in such note, shall be taken to be payable to such other person, and shall be assignable and indorsable. The declaration in this case, in which the defendants are sued upon a bank-note as a promissory note, is according to precedent : 2 Chit. on Pleading, p. 130. In Raphael v. Bank of England (a), Cresswell, J., in his judgÂment, treats a bank-note as a negotiable instrument ; and in Wookey v. Pole (b), the negotiability of a bank-note and its currency are treated as controvertible terms. A bank-note then being clearly a negotiable instrument, the question is, what there is in the case to prevent the application of the 90th section ? The argument of the defendants would amount to (a) 17 C. B. 161. (b) 4 B. 85 Aid, 1. 498 COMMON LAW REPORTS. a repeal of the statute ; they would read the section, " or other "negotiable instrument, except promissory notes, payable to bearer " on demand, made by a banker."-[FrrzGEnALD, B. May it not be said that a bank-note is not a negotiable instrument for which an indemnity can be given, within the meaning of the section? Suppose the case of a loss of 1000 £1 bank notes, could a satisÂfactory indemnity be given in such a case?]-The answer is, that such an argument assumes that in every case the nature of the indemnity tendered should be looked to ; and, in this case, the indemnity offered was ample. The difficulty, moreover, if any, in the case suggested, would arise from the act of the Bank in issuing Ll notes. Lord Tenterden, in Hansard v. Robinson (a), speaking of a lost bill, says Is the holder then without remedy ? Not wholly so ; " he may tender sufficient indemnity to the acceptor, and, if it be "refused, he may enforce payment thereupon in a Court of Equity," We submit that, before the Common Law Procedure Act 1856, a Court of Equity might, upon this principle, have enforced payment of a lost bank-note. In Walmsley v. Child (b), and Glynn v. The Bank of England (e); the point was not decided by Lord Hardwicke, but the right to relief; in the case of a lost bank-note, was never questioned, and was substantially assumed. The plaintiff, therefore, must succeed, even if the Court held that the 90th section applied only to those cases in which a Court of Equity would have interÂfered ; but we contend that the Court must be governed by the express language of the Act, if a bank-note is a negotiable insultÂment.-[Ricamms, B. I think it is manifest that the Legislature intended that the operation of the section should not be confined to bills of exchange and promissory notes, strictly so called, because the section says "...