
    NORTH PENNSYLVANIA RAILROAD COMPANY VS. FITCHETT.
    The owner of lost railroad coupons who has tendered indemnity, is entitled to recover with interest from the date of demand.
    Error to District Court of Philadelphia. No. 173, January Term, 1863.
    In the Court below Fitchett brought an action ot covenant for the amount due on coupons 12,13 and 14 on bond 2103, and also on bond 2531 of the North Penna. R. R. Co. After receiving $5 on coupon No. 12 of each bond, Fitchett had his .pocket picked of his purse containing those coupons. He gave notice of the loss and tendered a bond of indemnity to the company. He also made demand for payment of coupons No. 13 and 14 of each bond when they became due. The Court directed a verdict for the full amount due on the coupons with interest, amounting to $183.81, reserving the following points: 1st, whether the plaintiff can recover the amount unpaid on the coupon warrants No. 12, due January 1st, 1861, which had been lost. 2d, whether the plaintiff can recover interest on the coupons.
    On January 24,1863, the Court entered judgment for the plaintiff on the points reserved in the following opinion by
    Hare, J.:
    The necessity for presentment at the time of demand, is a rule of the law merchant, and not of the common law, which permits profert to be excused by proper averments, even when, as in the case ot sealed instruments, it is prima facie requisite. The case of Bisbing vs. Graham, 2 Harris 14, which establishes the right to recover on a lost bill on giving a sufficient indemnity, therefore, necessarily implies that the same right exists in the case of a bond or the coupons attached to it, even when payable to the bearer, and capable of passing by delivery from hand to hand. Whether the production of such instruments can be made an indispensable prerequisite to the right of being paid, by an express stipulation that the obliger shall not be answerable unless they are produced at the time of the demand, need not be decided here, because the words employed are not sufficiently clear to show that such was the intention, and no intendment should be made in favor of an agreement, to deprive Chancery of the power of relief against accident, and make the loss of the writing, by which a right is evidenced, equivalent to the loss of the right itself.
    The right of the holder of a coupon bond, who has demanded payment on the coupons without success, to interest on them as compensation for the delay, which forms another of the points reserved in this case, has been vindicated on the ground that coupons being severable, if not separate from the writing to which they are attached, should be regarded as distinct instruments, and bear interest as such, from the time of default until they are actually paid. ■ But this agreement is open to the objection, chat coupons are themselves for interest, and that interest upon interest is not favored by the law, and will not ordinarily be allowed, unless there is express stipulation that it shall' be paid. The question has been put at rest in this State, by a recent decision of the Supreme Court, that the object for which coupons are attached to a bond, being to secure punctuality of payment, implies that the holder shall be compensated if the obliger makes default by not paying on presentment, at the time and place stipulated. And as the plaintiff in this case made up for the want of presentment, which had become impossible, by the tender of an indemnity which is conceded to have been sufficient, it was as much the duty'of the defendant to pay, as if the instrument itself had been presented.
    Judgment is therefore entered for the plaintiff on the points reserved, for the amount due on the coupons, with interest from the date of this'klemand.
    The North Pennsylvania R. R. Co. then took a writ or error, alleging that the Court erred in entering judgment for coupons No. 12, which were not produced at the trial and also in allowing interest on the coupons.
    
      Morton P. Henry and William P. Wister, Esqs., for plaintiff in error
    argued that the interest only becomes payable on presentation of the coupon. The Court will take judicial notice of the circumstances under which the bond was issued. Brandao vs. Barnett, 3 C. B. (Man Gr. & Scott) 519. The indemnity will protect the company only against a lawful payment of the coupon to a lawful holder. It is unreasonable to impose upon the company the burden of seeing that these coupons which are payable to bearer are paid to the real owner. No action lies at common law upon a lost bill or note endorsed in blank. Chitty on Bills, 291; Byles on Bills, 299. The bolder of one-half a bank note (the other half of which had been lost in the mail) was not entitled to recover, though indemnity had been offered. Mayer vs Johnson, 3 Campbell 325. Coupons are quasi negotiable. Beaver county vs. Armstrong, 44 Penna. 63, and are like bank notes, which the owner could not recover on, if stolen, even though he tendered a bond of indemnity.
    
      A. M. Burton, Esq., contra.
    
   The Supreme Court affirmed the decision of the lower Court on March 9, 1863, in the following opinion by

Woodward, J.:

The reasons giveii by Judge Hare are ample to justify the judgment he entered and on the same reasons we affirm his judgment.  