Walmsley v Child
| Jurisdiction | England & Wales |
| Judgment Date | 11 December 1749 |
| Date | 11 December 1749 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 1070
HIGH COURT OF CHANCERY
walmsley v. child, December 11,1749. No relief in equity on lost instrument, where no affidavit of the loss, and no offer of indemnity. As to action on note payable to A. or bearer. And as to action on lost bond. Modern practice of courts of law in dispensing with profert. This by no means destroys or affects the antient and acknowledged jurisdiction of courts of equity. (Vide 6 Ves. 812, 813, and 9 Ves. 464; Supplement, p. 163 and 284, and Askew v. Poulterers'1 Company, 2 Yes. sen. 89.) This cause came upon bill and answer; and the question was, what equity the plaintiff was intitled to upon the case stated, and facts admitted therein, which were these. Charles Walmsley, in April 1742, lodged money in the shop of Mr. Child and Company, for which he took notes payable to himself or bearer. About nine days afterward he came to the shop and acquainted them, that he had lost the notes ; believed his pocket was picked of them at play, and imagined he knew the person who did it: therefore desired, they would pay him the money, as the notes were not negotiated, but only lost. They answered, they were ready to do so, if he complied with what was usual in all such cases, viz. to enter into a bond with sureties to indemnify them. He submitted thereto; but never did it, advertising them for several days in the papers : and so it rested till his death. This bill was brought by his widow and administratrix, insisting, that these notes must be taken to be lost, and that after this length of time there is a presumption of it: and that the defendant had no right to insist on security against so plain a demand. The plaintiffs having a clear right, must have a remedy ; and therefore proper to come here, the accident of loss giving this court jurisdiction. The defendant runs no risk therein. .No action could be brought against Mr. Child by a person finding the notes ; for the legal right being vested in Walmsley and no other, his name, or. the name of his representative must be made use of in such action ; and then a release by the representative reciting the accident, would be a bar to that action. But the statute of limitations has barred; which might be pleaded in an action at law by such a bearer, or in a bill in equity ; for goldsmiths notes are within the statute of limitations as well as bills of exchange. Nor does this case concern promissory notes only, but all other deeds [342] and writings. These notes are as cash : and not. to be presumed, that any person having them would lie by as in the case of a bond, which carries interest. In a bill for payment of a legacy the court does not now require security to be given, though the .practice was so formerly ; and yet there may be debts standing out. For defendant. These notes are undertaken to be paid by the goldsmith or the banker to the bearer, whenever demanded; so that they never raise a credit in their books with the person named, who is not considered as intitled thereto, unless he has the notes to produce; without which he has no right at law; for he cannot bring an action for so much money had. and received to his use; because from the nature of the contract,. the bearer has a right to demand it. These notes by constant usage are as cash ; and as such passed in a late case of a devise .of all the money in his house. Then it is of consequence to this kind of credit and to the public, who receive advantage therefrom, that the faith and value of them should be kept; and though stopping payment is not the same as an act of bankruptcy, it might be followed therewith, and hurt the credit of the bank. The sale of such a note is an absolute sale of all the property of it, Comyns, 5 7; so that there is no want of assignment or conveyance thereof: but the very delivery over by purchase or gift passes the material. property; and from the terms and import of the contract, the defendant is not bound to pay but to the bearer. Then it is contradictory to the rules of law, to say the vendor by any act can alter the right of vendee : the release therefore will be no avail. As little will the statute of limitations be any security to the defendant, this case not being within it; for the notes not being for value received, which words are never inserted in common 1 YES. SEN. 343. WALMSLEY V. CHILD 1071 goldsmiths notes, but payable on demand, the statute of limitations does not run till demand and refusal: nor can there be interest by way of damages till then. But the statute of limitations is stopped by acknowledgement of the debt, which the defendant has all along done; and will take it out of the statute. If then a risk must be...
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...though strong evidence of the intent. Formerly, there could be no action at law on a bond without a profert. (See in Walmesley v. Child, 1 Ves. sen. 341, 345, and Askew v. The Poulterer's Company, 2 Ves. sen. 89, with the observation in the Supplement, p. 163, 284.)-{Supplement, 378.] The e......
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