Charnley, Executor of Smith, Deceased v Grundy
| Jurisdiction | England & Wales |
| Judgment Date | 20 April 1854 |
| Date | 20 April 1854 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 250
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 2 C. L. R. 822; 23 L. J. C. P. 121; 18 Jur. 653; 2 W. R. 372.
charnley, Executor of Smith, Deceased v. grundy. April 20, 1854. [S. C. 2 C. L. E. 822; 23 K J. C. P. 121; 18 Jur. 653; 2 W. E. 372.] Upon an issue on a plea that the defendant did not make the note declared on, it appearing that the note is lost, secondary evidence may be given of its contents,- and this whether the note be negotiable or not.-And, semble, that a special plea alleging the loss of the note, would afford no defence in the case of a non-negotiable note.-Held, also, that a plea stating that the note had been -destroyed, pursuant to an agreement between the maker and the'plain-tiff's testator, to whom it was given, could not, by rejecting the allegations as to the agreement, be treated as a plea setting up the loss of the note.-As to the power of the court to allow an amendment after trial, by adding a plea,-Qusere ? This was an action by the executor of the payee against the maker of a promissory note for 20001., payable to the testator by instalments. The plaintiff claimed 10001. The defendant pleaded, amongst other pleas, that he did not make the note in manner and form as alleged ; whereupon the defendant took issue. UC.B.609. CHAB.NLEY V. GRUNDY 251 [609] At the trial before Cresswell, J., at the last Assizes at Liverpool, the plaintiff's counsel in his opening stated that the note was lost; and he put in a bill in chancery, with the defendant's answer thereto, for the purpose of shewing the admission of the latter to that effect. On the part of the defendant, it was submitted that the plaintiff was not entitled to recover upon the note, without producing it; and for this Hansard v. Robinson, 7 B. & C. 90, 9 D. & E. 860, was relied upon., For the plaintiff it was insisted that the necessity for the production of the bill or note was limited to the case of a negotiable security: and, the learned judge being of this opinion, and that secondary evidence might be given of the contents of the note, a verdict was found for the plaintiff for the sum claimed. Knowles (with whom was Mill ward) now moved for a rule nisi to enter a verdict for the defendant upon the first issue, or for a new trial. The question is, whether, in an action upon a note or bill which is not negotiable, the plaintiff can recover without producing the instrument. [Jervis, C. J. There are two questions,-first, whether the non-production of the note is an answer,-secondly, whether the defence arises upon a plea that the .defendant did not make the note.] In Hansard v. RoUnson, Lord Tenterden said:- "The general rule of the English law does not allow a suit by the assignee of a chose in action. The custom of merchants, considered as part of the law, furnishes in this case an exception to the general rule. What...
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