
    James Patton, Jr., v. State Bank. The Same v. The Bank of South Carolina.
    An agent of tlie plaintiff cut a hank hill into two parts to transmit to tlie plaintiff hy two different mails ; one-half of the hill arrived safely, but the corresponding half was stolen from the mail; the plaintiff then carried the half, in his possession, to the hank from whence it issued, and demanded the amount, hut the hank refused to pay more than half the sum, when only half the hill was produced. Held, that the plaintiff was entitled to recover the whole amount of the hill.
    Cutting or severing a hank bill destroys its negotiability.
    This was an action of assumpsit, tried before the honorable the Recorder of the Inferior City Court of Charleston, May, 1820, in which the jury found a special verdict, in the following words : “We find, that on the 10th of August, 1819, five halves of five bank bills of the bank of the defendants, payable to bearer, and amounting together, before they were cut, to the sum of one hundred 45.4j.KI and eighty dollars, the property *of the plaintiff, were enclosed by the J agent of the plaintiff, in a letter which was lodged in the post office at Salisbury, and directed to the plaintiff, at Philadelphia; that on the 15th of the same month the remaining halves of the said bills were forwarded to the plaintiff by mail, by the same person, from the same place, and duly received by the plaintiff; but the five half bills enclosed and directed to him by mail, as aforesaid, on the 10th of August, never reached the plaintiff, in consequence of the mail, in which they were; being robbed, and the letter and said half bills felo-niously taken away by persons unknown; that the plaintiff thereupon caused the said half bills, which came to his hands as aforesaid, to be shown and presented at the bank of defendants, in Charleston, and full payment of the whole to be demanded of defendants; he, the said plaintiff, offering at the same time to give a bond of indemnity to save the bank harmless from any futuro liability to any one, on the five other halves of the said bills, which plaintiff had been thus deprived of; that the defendants refused to accept the indemnity offered, or to pay the half bills, as if they were whole; but offered, according-to the custom of the State banks in this city, which custom, we find, exists, to 'pay plaintiff ninety dollars, being the moiety of the whole five bills, which plaintiff refused to accept. Now, if the Court should be of opinion, that, by law, defendants were liable to pay the whole of the said five bills, upon the presentation of the said five half bills, under the circumstances aforesaid, then we find for the plaintiff, $180, with interest from the time of the demand, and costs ; but if on the contrary, the Court should be of opinion that the defendants were not bound to pay the whole, unless the whole of the notes or bills were presented for payment, then we find for the defendants, with costs.”
    
      On this verdict judgment was awarded for the plaintiff, and a motion was made to reverse that judgment, on the ground that the facts found entitled the defendants to a judgment, half notes being negotiable under 'x'the cus- r.x.,,,,, tom established by the verdict, at half their whole value. L
    The following opinion of the honorable Recorder, on the question made, accompanied the report:
    “ In determining the question arising under the special verdict, I shall not consider the effect which might be produced by an indemnity being given to the defendants, nor shall I be influenced by the custom found to exist in the State Bank, and Bank of South Carolina, of paying a moiety of the amount of a bill, when half of it is presented; because I think that this Court cannot order or judge of an indemnity, neither can a verdict be given by the jury requiring the execution of such a condition; nor is usage admissible to contradict or explain the meaning and import of a writing, the terms of which are unambiguous. The meaning of a bank note is to be elicited from its language. Its language is plain, and not to be misunderstood ; its popular and technical import is the same; it must therefore be governed by the rules which relate to similar instruments.
    “The sole question then remaining is, whether the defendants are bound to pay the whole amount of the bills declared upon under the circumstances found in the verdict, upon the presentment of the halves, unaccompanied by any proof of the physical destruction of the other halves not produced? The jury have found, that the halves not produced have been stolen by persons unknown; as the Court can intend nothing which is not contained in the verdict, the stolen halves must be regarded as being in existence.
    “ On the part of the defendants, it is contended, that the plaintiff cannot recover unless he exhibit the notes or prove their destruction, or show that their negotiability has ceased ; and this appears to me to be a correct presentment of the case. If the negotiability of the missing halves be destroyed, so that the banks cannot twice be recurred to for their payment, they run no risk in paying their total amount to *the plaintiff. It would, therefore, seem r-x-xg^ to be unreasonable, where the banks are absolved from this responsi- >- bility, that the plaintiff, admitted to be the bona fide owner of the bills before they were divided, should nevertheless not be able to recover their amount.
    “ By the defendants it has been said, that a bank note is money; that in law it is regarded as such; and that there would be no more propriety in subjecting a bank note to the payment of $100, upon the production of half a note of that denomination, than in compelling it to give a dollar or a doubloon upon the production of moieties of these coins.
    “ On the other hand, it is urged by the plaintiff, that a bank note is an acknowledgment of a debt due by the bank to the holder of it; that in its nature it is not negotiable, and cannot be so rendered by the bank.
    “ Both of these positions appear to me to be incorrect. It is true that a bank-bill is generally received as money; that it passes current as money, and that a tender in bank bills, in England, if not objected to, is a legal tender. But general practice and convenience will not change the nature of things. Notes of individuals are frequently taken and passed away as money, but it will not be said they are so. It is requisite that a tender, if demanded, should be made in money; and yet an objection to bank notes is valid, for the sole reason that they are not money. Money, according to its legal import, in this country, is coined metal, current for specified amounts, by the authority of the government. A bank note is an evidence that a certain quantity of such coin is due to the holder of it; but the bill and money differ as much from each other as a title does from an estate, or the power from the fruition. That a bank bill is an acknowledgment of a debt due to the holder of it must be admitted, but an objection of this nature is perfectly consistent with negotiability, and bank notes are as much negotiable as any commercial instruments w^h w^c-h we are acquainted; and a right of property in them is as fully ^transferred by a delivery, as in a promissory note, payable to order, by an endorsement. Upon the face of its bill, a bank promises to pay the bearer a certain sum upon demand ; according to the contract, the bearer, when he asks for its payment, is bound to produce it. The general rule is, that a person making a demand should accompany it with the evidence of the debt, for the debtor has a right to see his obligation cancelled, or to have it delivered to him,.when he is called upon to discharge it. This is a rule applying to every species of obligation, but especially to a negotiable security, which may have been legally transferred to another, at the very time when the original payee makes his demand for payment. But to almost every general rule there are exceptions. The books are full of cases, where a party may recover who has lost the evidence of his claim, upon due proof of its having existed, of its contents,'and of its loss. To this exception there is again an exception, that a negotiable instrument is not included within it, because, if it were, a debtor might be twice obliged to discharge his debt. But if a negotiable promissory note (i. e., negotiable only by endorsement), not endorsed, has been lost, as it is then divested of the nature of a negotiable paper, upon the proofs before mentioned, a suit can be maintained for its recovery. The same rule governs, if a negotiable instrument has been destroyed. Chitty, 167, Pierson v. Hutchinson. 2 Gamp. N. P. 0., 212. Does not the case before us come within the reason and principle of these exceptions? The bills -were negotiable when received by the plaintiff; they were then exclusively the property of the plaintiff; they have, by no act of his, been transferred. Oan the halves which are missing be rendered negotiable by any act of the plaintiff, or any other person ? No property in the whole note can be vested in the possessor of the stolen halves; he could not produce the evidence of his right; he never had the whole notes ; and excepting in certain instances, by which his case is not embraced, to give authority to demand payment of a note, the note must be *4fdl ^exhibited. He could not prove the loss of the halves owned by the J plaintiff; they are not lost; he could not prove a right of property in these halves; he never had it; he could not even appear as the prima facie owner; possession is necessary for that purpose.
    “ Suppose, after the payment of these bills to the plaintiff, that the holder of the other halves should call upon the banks, and granting, which is very improbable, that he took the missing halves in the course of business, having given for them a valuable consideration, still he would hold them with notice, that the right to the amounts of them might be in the proprietor of the other halves, and he consequently would be bound by every defence which could legally or equitably be insisted upon against the finder or robber, because he would have accepted them under such circumstances as would necessarily sot him upon an inquiry. The individual from whom the receiver of these halves obtained them, might be liable to him, but not the banks, whose notes he never had. If the drawer of a negotiable note, have notice before payment, that it is lost, and nevertheless pays it, he does so at his peril; and if it turns out that the receiver of it had no title, the drawee will be liable to the real owner. Lovell v. Martin, 4 Taunt., 799. This decision relates to a negotiable instrument, in which, as in the case of a bank bill, the right of property would be prima facie in the holder. If a bill be lost and found, the finder has no property in it against the owner, though he has against all other persons. 1 Balkeld, Evans’ Edition, 126. Now-the finder or possessor of the notes in question, would be in the same situation as the finder of the bill in this case, and yet he would have no right against the real owners, who are the plaintiffs, and who, by the finding of the jury, have never transferred their property. There is a case in 3 Campbell’s Nisi Prius Oases, 324, where the facts are similar to those before us, in which the determination was, that the original ■x'47fll bona fide holder could not recover. The ground upon which Lord *EUen-4‘UJ-borough, decides, is, that the half of the note, which had been stolen from the mail, might have immediately got into the hands of a holder, for valuable consideration; and he -would have as good a right of suit upon that, as the plaintiff upon the other half. I should speak with very great diffidence, when I said, for the reasons before expressed, that it does not seem to me that the conclusion of the English judge is warranted by his premises, were I not sustained in this judgment by the decisions of two judges of the Supreme Court of the United States, published in a newspaper, and in Niles’ Register, which are in accordance with the views I have taken.
    “ I am, therefore, of opinion that the plaintiff is entitled to recover from the defendants the full amount of the bills he has declared upon, together with interest from the periods of their respective demands.”
    
      Prioleau and Gadsden, for the motion. Bunlcin, contra.
    
      
      "x'(a) The following case, determined in the Circuit Court of the United States, r^An-% for the District of Columbia, is, we presume, the one from Niles’ Register, but we have not been able to find the other case alluded to by his Honor, the Recorder. —R.
      Christopher Arm at v. The Unios Bahk on Georoetowh.
      This suit was brought for the recovery of $100 from the Union Bank. It appeared, from the case stated, that a note for $100, belonging to the plaintiff, was cut in two, and was sent by two mails, for the purpose of being remitted with safety, from Gloucester, in Virginia, to Baltimore. One-half of the note was received, and the other half never came to hand. On proof of the facts, the plaintiff applied to the bank for the payment of $100, and offered to indemnify the bank against any claim that might be founded on the half of the note, when produced. The bank refused to pay the plaintiff more than fifty dollars ; conceiving that they would be liable to pay, by custom, the other fifty, when the other part of the note was produced. 2 Camp. 211, was cited.
      
        Per Cur. In this case, the note must be considered, by being severed, as destroyed. The half of a bank note is not a negotiable instrument, and could give no title to a bona fide holder, who received it after it was severed, to recover upon it. As it is admitted that the plaintiff was the real owner of the note, when its negotiability ceased by being cut in two, ho is entitled to recover the whole amount from the bank. Judgment for the plaintiff; — Niles’ Reg., vol. 16, 360.
    
   The opinion of the Court was delivered by

Johnson, J.

The grounds on which this motion rests, have been so fully and ably considered in the learned opinion of the judge who tried the cause, in whose conclusions the Court concur, that the expression of that concurrence is all that is left to the Court.

I will remark, however, on the question, as to the effect of cutting or severing the note or bill, on its negotiability, that the practice of cutting them for the purpose of transmitting them by different conveyances, had its origin unquestionably in an opinion that it destroyed its negotiability. So far, therefore, as usage could have any influence as to the legal construction, it favors the conclusion that a severance of the note destroys its negotiability. But I am fully satisfied that such is the legal effect, both on authority and principle.

The motion is discharged.

Bat, Nott and RjchaRdson, JJ., concurred.  