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The City of Cincinnati v. Rice.

provided, nothing herein contained shall be construed to ex- IN BANK. ' tend to those who conscientiously do observe the seventh day

of the week as the Sabbath," &c.; Swan's Stat. 255. It will be seen, that the city ordinance, before referred to, is upon the same subject matter with this section of the statute, and it is an exact transcript of the same, with the interpolation of the words "trading, bartering or selling, or buying any goods, wares or merchandise," previous to the words "or at common labor."

Now, how is this general law of the State usually understood and construed? Does it admit or license "trading, bartering or selling, or buying any goods, wares or merchandise," on the first day of the week, while ordinary labor is prohibited? Can the merchant keep open his store, and vend his goods on this day, while the farmer is compelled to abandon his ordinary occupation? Such has never been understood to be the meaning of the law. But, if trading or merchandising is prohibited on this day, it is only because the transaction of this description of business is considered to be within the meaning of the terms "common labor."

It seems to be admitted by counsel for the plaintiff in error, that, in giving a construction of the general law of the State, and in carrying that law into effect, "trading, bartering or selling, or buying goods, wares and merchandise," must be held to be common labor; and such is, undoubtedly, the proper construction of the statute. But it is claimed that, when the same words are used in an ordinance of the city of Cincinnati, they should be held to have a different meaning. There may be force in this reasoning, but it seems to me, if adopted, it will lead us into difficulty.

Here we have a general law of the State, in which it is admitted that the phrase "common labor," includes within its meaning, "trading, bartering or selling, buying," &c. We then have a city ordinance, in which these identical words are used, and we are called upon to say, that they are not included in the term "common labor," because, in connection with them,

Dec. Term,

1846.

Thayer and others v. King..

1846.

IN BANK. these latter words are introduced. It seems to me that it will Dec. Term, not do; that although, by giving the construction to this ordinance contended for by plaintiff's counsel, we may shut up the shops of the Jewish merchants in Cincinnati, on the first day of the week, we shall open the shop-doors of the whole mercantile community, in every other part of the State.

Besides, by giving the ordinance the construction which seems to me to be the proper one, that ordinance is rendered perfectly unobjectionable, as there can be no pretence that it is contrary to a statute law of the State.

The judgment of the Court of Common Pleas is affirmed, with costs.

MARTIN THAYER and THOMAS T. MASON VS. BENJAMIN
KING.

An action will lie, at the suit of the owner of negotiable paper, which has been lost after it fell due, at law; but if lost before due, the remedy is in Chancery, where the owner can be required to indemnify the maker.

THIS is an action of ASSUMPSIT, reserved in the County of MIAMA, upon an agreed statement of facts, as follows:

The plaintiff's declared upon three several promissory notes, given by the defendant to one Joseph Layman; one dated Dec. 5, 1837, for $65; one dated November 16, 1839, for $8, and the other dated January 3, 1842, for $105.69; all payable on the day of their date, and duly indorsed by the plaintiffs.Plaintiffs proved, by Robert C. Schenck, that, as attorney for plaintiffs, in the spring or summer of 1843, having a claim to collect for them, he called upon Joseph Layman, against whom the claim was, and received from him an assignment of the above notes; that the notes were all due at their respective

Thayer and others v. King.

1816.

dates aforesaid, stating their dates and amounts, as in the decla- IN Bank. ration; that they were payable to Joseph Layman, or order, Dec. Term, who then indorsed them, in blank, and delivered them to the plaintiffs. On the same day, being on his way to Cincinnati, he lost said notes, in a package of papers, dropped somewhere upon the turnpike; that every effort had been made, by inquiry and advertisement, to find them, but without avail.

On this state of facts, the defendant's counsel moved to nonsuit the plaintiffs, upon the ground, that an action at law cannot be maintained upon a lost note, payable to order, and indorsed in blank, after it became due; which question the Court reserved for decision at the Court in Bank.

Odlin & Schenck, for Plaintiffs.

The question, reserved by the agreed case, is, whether there is relief, at law, upon a lost negotiable promissory note, indorsed after due?

In Story's Equity Jurisprudence, vol. 1, page 102, sec. 85, it is said, equity will not entertain jurisdiction for relief upon a lost negotiable note, so as to decree payment, upon the mere fact of loss; for no such supposed inability exists to recover at law, as exists for want of a profert of a bond, at law. No profert is necessary; and a recovery can be had, at law, upon mere proof of the loss. Walmsley v. Child, 1 Vesey, 345; Glynn v. Bank of England, 2 Vesey, 38, 41.

The first case was a bill in chancery, to be decreed payment of Goldsmith's notes, payable to bearer, (and, by the custom of merchants, passing as cash,) which had been lost. Lord Chancellor Hardwicke says: "Upon the whole, therefore, the plaintiff must bring an action at law for the money." And, again: "I see no doubt of maintaining the action." He also remarks, that, so far as concerned inland bills of exchange, the merchants procured the passage of the act of 9 and 10 William 11., by which the drawer of a bill of exchange, lost, and never indorsed, is not bound to pay, without indemnity.

IN BANK.

Dec. Term,

1846.

Thayer and others v. King.

The second case was for the amount of Bank of England notes, averred to be lost. The Chancellor decided, that the remedy on a lost note is at law; and he takes the distinction between a note and bond, on the ground of oyer, at law, of sealed instruments. The bill in this case was filed for relief, and with an offer of indemnity. 2 Vesey, sen. 38, 41.

In Glover v. Thompson, Ryan & Moodie's Rep. 403; 21 Eng. Com. Law Rep. 472, it was decided that an action may be maintained on a lost bill of exchange, if the loss did not happen until after the bill became due.

In the case of Hansard v. Robinson, 14 Eng. Com. Law Rep. 20; 7 Barn & Cress. 90, in 1827, Lord Tenterden, C. J., held, that "the holder of a bill of exchange cannot, by the custom of merchants, insist upon payment by the acceptor,

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' without producing and offering to deliver up the bill;" and therefore it was held, "that the indorsee of the bill having lost it, could not, in an action at law, recover the amount from the 'acceptor, although the loss was after the bill became due, and the indorsee offered an indemnity." This case, being upon a bill of exchange, the Court say, that the acceptor, paying the bill, has a right to the possession of the instrument, for his own security, and as his voucher and discharge in account against the drawer. The case is determined on the custom of merchants, and contains reasoning not applicable to promissory notes. Upon this question, it is admitted by the Court, that the decisions are not uniform, and cannot be reconciled.

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Story on Promissory Notes, page 114, sec. 111; the authorities are collected in a note. "There is," says he, "as in England, a diversity of judicial opinion as to the right of the holder, at law, to compel payment of a promissory note from the maker, without a delivery or production thereof. In 'some of the States, the affirmative has been maintained. In ' others, the English doctrine prevails; and in others, the holder ' is entitled to recover at law, if he executes a suitable indemnity." To these authorities, as there collected, we refer, remarking that, in the case of Renner v. The Bank of Colum

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Thayer and others v. King.

Dec. Term, 1846.

bia, 9 Wheat. Rep. 581, the Supreme Court of the U. States IN BANK. permitted a recovery upon a negotiable promissory note, which had been lost during the pendency of the suit, it having been in Court a few days before the trial, but had been mislaid, and, upon thorough search, could not be found.

Judge Story, in his work upon Bills of Exchange, sec. 449, page 522, after noticing the discrepancy of the authorities upon this subject, remarks:

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"Which doctrine (to wit, the recovery at law, or not) will 'ultimately prevail in America, is not for the Commentator to conjecture." "It may be difficult," he says, "upon satisfactory grounds, to overturn the reasoning of Lord Tenterden, already referred to."

That difficulty consists, in the reasons assigned, of throwing the burden of proof upon the drawer as to the loss, and of preserving and commanding the proof, in a future action. With all deference to this opinion, it may be answered, that, at law, the fact of loss, and that the plaintiff is the true owner of the note, must be fully made out; and that all this difficulty equally arises in a court of equity; so that it is narrowed down to the simple question of indemnity. Neither will this indemnity be perfect; for the securities are equally liable to removal and insolvency, with the plaintiff. It must be judicially proved that the plaintiff, and the plaintiff alone, is entitled to recover; and that by disinterested testimony. It is true, that the defendant may be made liable, in future, upon the presumption, that the holder of the note, indorsed in blank, received it before it became due. But indemnity does not help him, except to increase his prospect of the ultimate recovery of his money. We are not aware of any decision in Ohio upon this subject, If the Court are free to adopt a rule amid these conflicting authorities, would it not be the better rule, if indemnity is required, to leave the defendant to his bill in equity, in cases where he may deem it necessary to require that indemnity?— the presumption of future liability being against the direct proof at law,

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