the excess of the short bills, beyond what was sufficient with the cash balance of 21,000l. to cover the outstanding acceptances. The Lord Chancellor ordered the short bills to be delivered up; the consent of the Crown, who had an extent against the bankrupts' property, being first obtained. Ex parte Rowton, 17 Ves. 426. 1 Rose, 15. S. C. In a similar case a similar order was made, the petitioners undertaking to leave with the bankrupts' estate, bills sufficient to meet the acceptances, which it was liable for on the petitioners' account, and being ordered to give security that those bills should be paid when due. Ex parte Buchanan, 1 Rose, 280. In another case the right to receive back the short bills was considered indisputable, and the following order was made, "The provisional assignee to retain the cash balances, and the cash received on the short bills paid; and also a sufficient number of the short bills unpaid, to cover the amount of the bankrupts' acceptances; the provisional assignee to deliver over to the petitioners the residue of the bills, notes, and securities. It is further understood that the cash and notes retained are to be delivered up, as the petitioners produce the acceptances cancelled." Ex parte Harford, 2 Rose, 162. Ex parte the Burton Bank, Id. 163. See also Ex parte Smith, Buck, 355. It is not essential, in order to enable the party paying in bills to his banker, to reclaim them, that such bills should be entered short. Ante, p. 350. The plaintiffs paid into the bank of D & Co. on their banking account, bills which they indorsed. It was stated to be the custom of this and of other banking houses in the country, that when bills not due were brought by a customer, they were entered in a gross sum with cash or paper immediately payable, to the credit of the customer, giving him either cash, or liberty to draw to the amount; and that the bankers so far considered these running bills as their own, that they would, as convenience required, pay them away to their customers in the usual course of business, or transmit them to the correspondents in London. D & Co. became bankrupt, and their assignees received the amount of the bills, the balance of the cash account at the time of the bankruptcy, being in favor of the plaintiff. The court of K. B. held that the plaintiffs were entitled to recover the amount. Per Lord Ellenborough, “Every man who pays bills not then due into the hands of his banker, places them there as in the hands of his agent to obtain payment of them when due. If the banker discount the bill or advance money upon the credit of it, that alters the case; he then acquires the entire property in it, or has a lien pro tanto for his advance. The only difference between the practice stated, of London and country bankers, in this respect is, that the former, if overdrawn, has a lien on the bill deposited with him, though not indorsed; whereas the country banker, who always takes the bill indorsed, has not only a lien upon it, if his account be overdrawn, but has also his le Giles gal remedy upon the bill by the indorsement; but neither of them can have any lien on such bills until their account be overdrawn, and here the balance of the cash account at the time of the bankruptcy, was in favor of the plaintiffs.” v. Perkins, 9 East, 12. So where the customer paid bills into the bank, which he indorsed, and these bills were not written short, but entered thus on the credit side of the pass book; and the customer was allowed to draw cash for the amount, interest being charged on all payments on both sides, and it was proved to be the constant usage and course of dealing of this bank and of others in the county of Lancaster, to use bills so paid in by paying them away to their customers as they thought fit; the court of K. B. held that on the bankruptcy of the bankers, the bills so paid in did not pass to their assignees. Per Holroyd J. "In order to change the property, it must be shewn that the bankers bought the bills or discounted them, which is indeed the same thing; then the customer might have immediately sued the bankers for the price which they agreed to give for the bills, but still retained in their hands; and if the customer did not indorse the bills, and they were afterwards dishonored, the bankers under such circumstances would have no remedy against them. Is there sufficient in this case to show that the bills were either bought or discounted by the bankers, so as to make the price the property of the customer? They were entered as bills, not as cash, and even if the latter mode of entry had been adopted, it would still, according to Giles v. Perkins, admit of explanation." Thompson v. Giles, 2 B. & C. 422. Although the party who deposits bills with a banker, cannot reclaim them without indemnifying the estate of the banker who has become bankrupt against any acceptances for which the estate is liable for him, yet the holder of such acceptance has no equity to have the bills thus deposited, applied specifically in discharge of the acceptance. Ex parte Waring, 2 Rose, 182. 353 CHAPTER XV. OF LOST AND STOLEN BILLS, &c. In what cases the loser of a bill or note may recover on it.` In what cases the drawer may be compelled to give another bill. What circumstances are proof of bona fides in receiving lost or stolen bills, &c. Between what parties it is a good defence that the bill has been lost or stolen. Conduct to be pursued in case of loss or robbery of bills, &c. Remedy against the postmaster or his servants for lost or stolen bills. Who shall bear the loss in case of bills, &c. sent by the post and lost. In what cases the loser of a bill or note can recover upon it.] Where a bill or note is lost, and at the time of the loss, is in such a state as that it is possible that it may come into the hands of a bona fide holder for value, who may be intitled to sue upon it, the party losing it will not be intitled to recover upon it without producing it. Thus, where a bill was lost after being indorsed by the payee, it was held by Lord Ellenborough, that although, if destroyed, evidence of its contents might have been received, yet if lost, no action would lie against the acceptor without producing the bill, although the plaintiff had offered an indemnity, for it might be in the hands of a boná fide indorsee for value, who might maintain an action upon it against the defendant. Pierson v. Hutchinson, 2 Campb. 211. 6 Ep. 126. S. C. So where a bill indorsed in blank had been picked out of the pocket of the attorney's clerk shortly before the trial, Gibbs C. J. nonsuited the plaintiff on the ground of the non-production of the bill. Poole v. Smith, Holt, 144. And so in an action by the indorsee against the acceptor of a bill, where it appeared that the bill had been lost before it became due, but that the defendant when it became due had promised to pay it, it was held that the plaintiff, who by his negligence, had exposed the defendant to the danger of being compelled to pay the bill when produced in the hands of another holder, was not intitled to recover. Davis v. Dodd, 4 Taunt. 602. So where a check was given for stock sold, and lost on the same day, and four months afterwards, the bankers on whom it was drawn stopped payment, and the seller of the stock sued the buyer for stock sold, Lord Ellenborough held that the action could not be maintained, for the check might have got into the hands of a person who might maintain an action on it. The very day it was lost it might have been passed for value to a bona fide holder without notice. Bevan v. Hill, 2 Campb. 381. And in action by the payee against the maker of a note, where it appeared that the note had been lost, Lord Ellenborough was of opinion that the plaintiff could recover, neither upon the original consideration nor upon the note, for as the note, for anything that appeared in evidence, was in existence, it might be still in circulation, and the defendant be liable to be called upon to pay it. Dangerfield v. Wilby, 4 Esp. 159; and see Champion v. Terry, 3 B. & B. 295. Rolt v. Wat4 Bingh. 273. Ante, p. 102. Where a traveller received a provincial bank note, payable to bearer, which he cut in two, and sent the halves on different days by the post, addressed to his employers in London, and one of the halves was stolen from the mail-coach, Lord Ellenborough held that an action could not be maintained on producing the half which had arrived safely. He said that payment could only be inforced at law by the production of an entire note, or by proof that the instrument, or the part of it which was wanting, had been actually destroyed; that the half taken from the mail might have immediately got into the hands of a bona fide holder for value, and he would have as good a right of suit upon it as the plaintiffs. Mayor v. Johnson, 3 Campb. 324; see Mossop v. Eadon, 16 Ves. 430., and quare whether a person taking half a note, could be held to take it bona fide. So in an action by the indorsee against the acceptor of a bill lost after it became due, it was objected for the defendant, that the action could not be supported without the production of the bill, and Littledale J. expressed a strong opinion against the right of the plaintiff to recover, and directed a nonsuit with liberty to the plaintiff to move to enter a verdict. Hansard v. Robinson, Ry. & Moo. 404. (n.) Upon motion for a new trial, the court held that the plaintiff was not intitled to recover, for that by the custom of merchants, the acceptor, on payment, had a right to the possession of the bill, and though it was lost after it became due, son, that the holder could not cast the burthen of proving this fact on the acceptor, in case of another action brought against him on the bill. 7 B. & C. 90. But where a bill or note is lost, and at the time of the loss is in such a state as that it cannot be available even in the hands of a bona fide holder for value, it has been held that the party losing it may recover upon it without production. Thus, where one half of a promissory note, not payable to bearer or order was lost, and the loser filed a bill in equity for relief, the Master of the Rolls dismissed the bill, on the ground that an action at law would lie upon the note. Mossop v. Eadon, 16 Ves. 430. So where a bill is lost, which was specially indorsed to the party losing, it has been held that he may recover upon it without production. Thus, in an action against the acceptor by an indorsee, to whom the bill had been specially indorsed, on proof of the bill having been stolen, the plaintiff was allowed to take a verdict. Long v. Baillie, 2 Campb. 214. (n.) And where a bill was lost after it was due, and after the commencement of an action, the court referred it to the master to see what was due for principal and interest, on the production of a copy of the bill verified by the affidavit of the plaintiff's attorney that the bill had been stolen from his pocket. Brown v. Messiter, 3 M. & S. 281. In the following case also the plaintiff was allowed to recover. The clerk of the plaintiff's attorney proved that he had lost a bill from which he had drawn the declaration in the cause, and that it was correctly set out in the count. He proved also, that before the loss of the bill it had been shewn to one Reynolds, and that the loss occurred after the cause had been set down for trial. The record shewed, that this was after the maturity of the bill as stated there. Reynolds being called, proved that the bill shewn him had an acceptance in the defendant's handwriting. Pugh, another witness, proved that he had received from the drawer, who was also the indorser, a bill indorsed with his name, corresponding with the bill set out in the record, and had delivered it to the plaintiff, and that both these transactions were for value. The plaintiff's attorney then proved that he had received the bill, on which the action was brought, from the plaintiffs, and handed it to his own clerk, directing him to draw a declaration from it, which he saw him do. The draft of the declaration was then put in and read as evidence of the bill. Abbott C. J. (the cause being undefended) said that the proof was perfectly satisfactory, and there was a verdict for the plaintiff. Glover v. Thompson, Ry. & Moo. 403. It has been said that a distinction may be taken with regard to a bill indorsed in blank and lost after it has become due. As the finder could not in that case give an effectual right of action, even to an indorsee for value, and without notice, may be thought that the acceptor cannot insist upon an indemnity, |