By the Court.
Woodruff, J.
The plaintiffs, upon the facts alleged and proved on this trial, are equitable owners of the bill of exchange in question. If in truth no title' has been acquired by the Parkersburg Bank by the negotiation thereof to them, the plaintiffs are entitled to the possession of the bill.
The question-which alone it is necessary to consider, if I am correct in my conclusion upon the question is, can a party, either as legal or equitable owner of a bill of exchange, demand payment from the drawee, and on refusal charge the drawer, [452]*452and recover the amount thereof from him "without producing the bill, on showing that the bill is in another state, in the possession of one who is not a party to the suit, who- has paid full value therefor, who claims title thereto, and a right to recover thereon, but to whom the bill was negotiated by a forged indorsement ? ■
The familiar rule of commercial law, that in order to charge the drawer, the hill must he presented to the drawee, and in order to recover from the drawer, the bill must be produced, is not and can not successfully be contradicted; and that this rule is qualified by an exception in the case of lost bills is not denied.
It is not material to inquire whether a recovery by the plaintiffs, if they are entitled to recover upon the facts stated, shall be deemed warranted by our statute authorizing a recovery in a suit founded upon a bill lost while belonging to the party claiming, or must be founded upon the jurisdiction and power of a court of equity to allow such recovery in a case equitably entitling the party thereto. Our courts are now "courts of law and equity. In actions in our courts the party may have any relief, legal or equitable, to which upon the facts alleged and proved, he is entitled.
It is, however, pertinent to observe, that the statute in terms gives a recovery only where the bill is lost while belonging to the party claiming.
This was within the jurisdiction and power of courts of equity before the statute. The statute, therefore, did not enlarge the jurisdiction of the court; it simply declared the party in such case entitled to recover in a suit founded on the bill.
If the bill is lost, within the meaning of that statute, it was “lost” in contemplation of a court of equity. If it was not a “lost” bill within the statute, but is, nevertheless, so situated that,' in the judgment of a court of equity, it should be treated as in like condition, then the claim to recover is made in a jurisdiction competent to give relief. An illustration of the case last supposed is found in that of a bill in course of transmission by a vessel which was captured and carried into a port of the enemy while at war. 6 Ves. Jr. 811.
Again, it must, for the purpose of the inquiry be assumed, [453]*453as in fact found by the referee, that the plaintiffs have used due diligence in notifying the drawers and draweesaof the facts claimed by them in regard to the-actual situation of the bill. And that, in respect to demand of payment and notice of nonpayment, they have done all which, without the production of the'bill itself, they could reasonably be required to.do.
These’ suggestions bring us to the inquiry above stated, and enable us to present it first in a form much more simple.
Can a recovery of the amount of a bill of exchange be had in a suit against a party thereto, by the legal or equitable owners, without its production, on proof that another person has the possession thereof, claiming title, which title the plaintiffs are ready to disprove ?
An affirmation of this question declares that, upon mere proof of a wrongful holding or detainer of a bill by a third person, not a party to the suit, the acceptor or drawer may be subjected to the hazard of proving such holding by the third person to be wrongful in any future claim which may be made upon him—in other words, such acceptor or drawer may be required to settle the plaintiff’s dispute with an alleged wrongdoer.
Eo case has been called to our attention in which a recovery has been allowed in such case, and no treatise upon bills of exchange, lost or not lost, states any such proposition. This is not conclusive, perhaps, but it is some evidence that, while controversies respecting the right of recovery upon lost bills, have been numerous, no one has supposed that .the wrongful detention of the bill by a third person entitled an alleged owner to recover without its production.
The very object of the rule itself which requires such production is, that the party paying may have in his possession the voucher and proof of his payment to a person entitled to payment, and an assurance or guaranty that he shall not be vexed by a claim of another thereon; and the rule is not to be dispensed with, in the face of the avowed fact that such other person holds the bill and makes such claim. Indeed, I can not suppose that a right of recovery would for a moment be claimed without the further fact that the adverse holder of the bill resided in another state.
[454]*454What should he the influence of that fact ? In considering that question the same observation just suggested is equally patent, viz.: that no case or authority is found which affirms the right to recover at law or in equity, on the facts stated.
It is proper to bear in mind that the bill which is claimed to be wrongfully withheld from the plaintiffs is not in a country at war with us, to which our citizen can not resort for the recovery of the bill or its válue, and from which the holder can not come to our courts and prosecute the parties: and it is further proper to suggest — and a court of equity in this state could not close its eyes to the fact — that the bill is held in a state where not only the general principles of right and wrong are recognized and enforced, but where the general rules and principles of the law, and the maxims of equity prevail as they do with us, and where remedies may be pursued, rights enforced and wrong redressed, in modes conforming to the ordinary pursuit of justice and equity.
Of so much, at least, the court must take notice, as presumptively furnishing to the plaintiffs an opportunity to assert and maintain their rights against the holders of the bill, and, iij they have -no title, to obtain complete redress.
In the present case not only this is true, but the bill is in a state where judicial tribunals exist by the federal laws which are common to the several states, proceeding upon like principles, legal and equitable, there and here, and to which the plaintiffs may resort.
It is, therefore, unnecessary to consider the case of a bill which, through misadventure or wrong, has come to the possession of a savage in a remote or inaccessible country, where, in every reasonable estimate of its situation, it must be declared lost.
■ The bill was sent voluntarily by the plaintiffs to Parkersburg. The facts found import that it was their intention that it should be negotiated there. It was negotiated there, though wrongfully, fraudulently, and by a crime, according to the result of their ex parte investigation of the claims of the Parkersburg Bank.
It is quite apparent, however, that there may exist grounds for their claim which the present trial has not disclosed. That bank may have evidence of the authority of H. C. Abbott to [455]
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By the Court.
Woodruff, J.
The plaintiffs, upon the facts alleged and proved on this trial, are equitable owners of the bill of exchange in question. If in truth no title' has been acquired by the Parkersburg Bank by the negotiation thereof to them, the plaintiffs are entitled to the possession of the bill.
The question-which alone it is necessary to consider, if I am correct in my conclusion upon the question is, can a party, either as legal or equitable owner of a bill of exchange, demand payment from the drawee, and on refusal charge the drawer, [452]*452and recover the amount thereof from him "without producing the bill, on showing that the bill is in another state, in the possession of one who is not a party to the suit, who- has paid full value therefor, who claims title thereto, and a right to recover thereon, but to whom the bill was negotiated by a forged indorsement ? ■
The familiar rule of commercial law, that in order to charge the drawer, the hill must he presented to the drawee, and in order to recover from the drawer, the bill must be produced, is not and can not successfully be contradicted; and that this rule is qualified by an exception in the case of lost bills is not denied.
It is not material to inquire whether a recovery by the plaintiffs, if they are entitled to recover upon the facts stated, shall be deemed warranted by our statute authorizing a recovery in a suit founded upon a bill lost while belonging to the party claiming, or must be founded upon the jurisdiction and power of a court of equity to allow such recovery in a case equitably entitling the party thereto. Our courts are now "courts of law and equity. In actions in our courts the party may have any relief, legal or equitable, to which upon the facts alleged and proved, he is entitled.
It is, however, pertinent to observe, that the statute in terms gives a recovery only where the bill is lost while belonging to the party claiming.
This was within the jurisdiction and power of courts of equity before the statute. The statute, therefore, did not enlarge the jurisdiction of the court; it simply declared the party in such case entitled to recover in a suit founded on the bill.
If the bill is lost, within the meaning of that statute, it was “lost” in contemplation of a court of equity. If it was not a “lost” bill within the statute, but is, nevertheless, so situated that,' in the judgment of a court of equity, it should be treated as in like condition, then the claim to recover is made in a jurisdiction competent to give relief. An illustration of the case last supposed is found in that of a bill in course of transmission by a vessel which was captured and carried into a port of the enemy while at war. 6 Ves. Jr. 811.
Again, it must, for the purpose of the inquiry be assumed, [453]*453as in fact found by the referee, that the plaintiffs have used due diligence in notifying the drawers and draweesaof the facts claimed by them in regard to the-actual situation of the bill. And that, in respect to demand of payment and notice of nonpayment, they have done all which, without the production of the'bill itself, they could reasonably be required to.do.
These’ suggestions bring us to the inquiry above stated, and enable us to present it first in a form much more simple.
Can a recovery of the amount of a bill of exchange be had in a suit against a party thereto, by the legal or equitable owners, without its production, on proof that another person has the possession thereof, claiming title, which title the plaintiffs are ready to disprove ?
An affirmation of this question declares that, upon mere proof of a wrongful holding or detainer of a bill by a third person, not a party to the suit, the acceptor or drawer may be subjected to the hazard of proving such holding by the third person to be wrongful in any future claim which may be made upon him—in other words, such acceptor or drawer may be required to settle the plaintiff’s dispute with an alleged wrongdoer.
Eo case has been called to our attention in which a recovery has been allowed in such case, and no treatise upon bills of exchange, lost or not lost, states any such proposition. This is not conclusive, perhaps, but it is some evidence that, while controversies respecting the right of recovery upon lost bills, have been numerous, no one has supposed that .the wrongful detention of the bill by a third person entitled an alleged owner to recover without its production.
The very object of the rule itself which requires such production is, that the party paying may have in his possession the voucher and proof of his payment to a person entitled to payment, and an assurance or guaranty that he shall not be vexed by a claim of another thereon; and the rule is not to be dispensed with, in the face of the avowed fact that such other person holds the bill and makes such claim. Indeed, I can not suppose that a right of recovery would for a moment be claimed without the further fact that the adverse holder of the bill resided in another state.
[454]*454What should he the influence of that fact ? In considering that question the same observation just suggested is equally patent, viz.: that no case or authority is found which affirms the right to recover at law or in equity, on the facts stated.
It is proper to bear in mind that the bill which is claimed to be wrongfully withheld from the plaintiffs is not in a country at war with us, to which our citizen can not resort for the recovery of the bill or its válue, and from which the holder can not come to our courts and prosecute the parties: and it is further proper to suggest — and a court of equity in this state could not close its eyes to the fact — that the bill is held in a state where not only the general principles of right and wrong are recognized and enforced, but where the general rules and principles of the law, and the maxims of equity prevail as they do with us, and where remedies may be pursued, rights enforced and wrong redressed, in modes conforming to the ordinary pursuit of justice and equity.
Of so much, at least, the court must take notice, as presumptively furnishing to the plaintiffs an opportunity to assert and maintain their rights against the holders of the bill, and, iij they have -no title, to obtain complete redress.
In the present case not only this is true, but the bill is in a state where judicial tribunals exist by the federal laws which are common to the several states, proceeding upon like principles, legal and equitable, there and here, and to which the plaintiffs may resort.
It is, therefore, unnecessary to consider the case of a bill which, through misadventure or wrong, has come to the possession of a savage in a remote or inaccessible country, where, in every reasonable estimate of its situation, it must be declared lost.
■ The bill was sent voluntarily by the plaintiffs to Parkersburg. The facts found import that it was their intention that it should be negotiated there. It was negotiated there, though wrongfully, fraudulently, and by a crime, according to the result of their ex parte investigation of the claims of the Parkersburg Bank.
It is quite apparent, however, that there may exist grounds for their claim which the present trial has not disclosed. That bank may have evidence of the authority of H. C. Abbott to [455]*455negotiate the draft for which, in perfect good faith, they have paid value; they may show that no forgery has been committed, and they may show facts which would estop J. H. Abbott to deny his authority; they may, if they can not show a legal title, possibly show an equitable one.
It is true that if this action can be maintained without the production of the draft, we are to take the facts to be as established by the proofs on this trial.
But the suggestions thus made are nevertheless pertinent to the inquiry, whether the adverse holding by the Parkersburg Bank creates an exception to the general rule, requiring its production in order to a recovery from the drawer.
I am clear in my own opinion, that the fact that the holder resides in another state makes no difference in this respect.
The practical effect of recognizing an exception founded on that circumstance is very important, and the inconvenience and hardships to parties to negotiable paper furnish a strong reason why a court of equity should give no countenance to it..
Let it be understood, as I am sure it has never before been understood, that whenever a controversy arises with the holder of negotiable paper residing out of the state, the claimant may sue the parties thereto here and recover, assigning that excuse for not producing and surrendering it to the drawer^ acceptor, or maker — and no party to such paper will be safe. An entirely new ground for invoking equitable interposition and relief will, I think, be introduced into the law, and injustice and wrong to innocent parties to the paper will be done under color of doing equity to a claimant. For it must be remembered that the indemnity which the • court prescribes as the condition of compelling payment is at best a precarious reliance.
In the ordinary fluctuations which occur in the mercantile community, for whom the rules of law and equity which we are considering are especially designed, such indemnity is liable to be utterly worthless when the party has need to look to it for protection.
If recovery is to be had in a case like the present, it can only be placed on the ground that the adverse claimant and holder is in another state.
The fact that the title is impeached by proof of forgery can [456]*456not make any difference. That is not material to the principle involved. It would present the same question if the allegation were that possession of the bill was procured by fraud, so far as the analogy to a lost bill is relied upon; for the question in the court of equity is, first of all, is there a sufficient excuse for not producing the bill? and to answer that question the particular facts which make an alleged detention wrongful are not material.
If its being wrongfully detained by a party out of the state be an excuse, then, whether the wrong-doer claims, through an alleged forged indorsement, or through a fraudulent procurement of possession, or even by a breach of contract, to retain the bill which came rightly to his possession, can make no difference.
True, if he claims by a forged indorsement of the name of the payee, he can never recover from any of the parties, but that is not the ground of jurisdiction. If it were, and without that the court would not grant relief, it is absurd to require indemnity to the defendant against his claim, for he has none which he can maintain.
That this is so will be readily seen, if the case where the alleged wrongful holder lived within this state be again adverted to. In such case, although a holding by a forged indorsement was alleged, the owner would be compelled to proceed against him as already shown, and he could not proceed as upon a lost bill. It is the non-residence alone which creates any distinction, and therefore the nature or ground of the wrongful detention is not material to the question. It would therefore follow that if the owner of negotiable notes saw fit to take them to New Jersey, or over the line into any of our adjoining states, and alleged that he was there defrauded of the possession, or borrowed money thereon, and claimed that hé had paid the loan, but the holder refused to return them, or even offered them at any of the many banks in our vicinity for discount, and alleged that they kept the notes without making such discount; in all these cases, so far as the question is .whether a note is lost or in a situation in which it should be so regarded in a court of equity, because it is in another state, in the hands of a third person having no title, the rule must [457]*457be the same as where the plaintiff’s allegation is that possession was obtained through a forged indorsement.
The true ground upon which a party is allowed in equity to require the payment of a lost bill; or a bill taken by the enemy in time of war, on giving indemnity, is, that he has no other recourse. He is ready to do, and is required to do, all he can. It is inequitable that, doing this, he should lose his money. The court can not equitably require him to do what the. general rule requires; it is unreasonable so to require, because it is not possible that he should do it, and hence it will be seen by examination of the cases that very satisfactory proof of the essential fact of loss of the bill is uniformly required.
The fact that the bill is out of the jurisdiction shows no such case. That fact has relevancy to the question of convenience in pressing his remedy for regaining possession, by establishing his title as against the alleged wrong-doer, but it raises a question of convenience only.
In my judgment, the claim made in this case is not only without precedent, but its recognition would be fraught with mischief, and would introduce into the law a rule dangerous in the extreme.
The judgment should be reversed.-
Grover, J., dissented, oh the ground that the indorsement being a forgery and the holder being in another state without the jurisdiction of the court the bill might be treated as a lost bill.
Judgment reversed, and a new trial ordered, with costs to abide the event.