IN BANK. Dec. Term, 1846. Thayer and others v. King. E. Parsons, for Defendant. The authorities relied upon to sustain the motion for a nonsuit in this case, are, Chitty on Bills, 9th edition, 291, 297; Pintard v. Tackington, 10 Johns. Rep. 104; Swift v. Stevens, 8 Conn. Rep. 431; Holmes v. De Camp, 1 Johns. Rep. 34; Angel v. Felton, 9 Johns. Rep. 149; Cummings v. Hackley, 8 Johns. Rep, 202. READ, J. This case was reserved for the determination of the single question, whether a recovery could be had upon lost negotiable paper, at law, or whether the remedy, in such case, was in equity. Upon this question, there is a conflict of decisions, both in England and the United States. In the decisions which have been made, different and various reasons have been assigned in support of either side; but from a careful review of the authorities, and a full comprehension of the principles of law controlling the transfer and fixing the right of holders of negotiable paper, it would seem that the only difficulty in the case grows out of the question of indemnity. All other matters, and the rights of parties, can be governed, controlled and modified in a court of law as well as equity. It is a necessary and fundamental principle of negotiable paper, that the innocent holder receiving it before due, is entitled to its proceeds. This is the essence and life of its negotiability. Hence, if the maker should be compelled to pay in case of negotiable paper lost before due, such payment would be no bar to the recovery in the hands of an innocent holder, who had received it before due; and in such case a double recovery might be had upon the same instrument. But if former payment or recovery would be a complete bar to any subsequent payment or recovery, the reason of the rule ceases, and the objection to a recovery by the owner, no longer exists. Hence, if the circumstances of the case are such that the negotiable paper can never be produced for payment a second time, or if produced would permit no right of recovery in the hands Thayer and others v. King. Dec. Term, 1846. of the holder, no indemnity in such case being required to IN BANK. guard against a second payment, recovery may be had in a court of law. Thus, if the instrument be totally destroyed, or if it pass into the hands of the holder, charged with all the equities which exist against the original holder, the action may be at law. Now, it is a well recognized principle, that negotiable paper received after it is due, is charged with all the equities existing between the original parties, So, if payment be made to the original holder, and a recovery be had by him, it would constitute a complete bar to another action brought by any person who should receive it after due. But if it be lost before due, and the original holder commence suit, there is a possibility that the paper may be outstanding in the hands of an innocent holder-upon which recovery could be had; and hence the law will not permit, in such case, a recovery to be had until complete indemnity is furnished against such possibility. Now, a court of law has not the power to compel this indemnity; and hence is forbidden to give judgment or to entertain jurisdiction of the case. A court of law proceeds upon fixed principles, and if the party is entitled to judgment, he is entitled to execution without limit or restraint. But a court of equity being called upon to give its aid, will guard the rights of all parties, and will not permit a recovery until the party seeking it will guard the opposite party from a danger which exists by the misfortune of the very person seeking its aid. It will say, You have been unfortunate in the loss of your instrument we will relieve you from this difficulty, provided you will fully guard the other party from all harm which may, by possibility, result from what, except from our aid, would be a misfortune to you. It has the power to determine the nature of the indemnity and the security. Hence, in those cases in which indemnity is to be given, relief must be had in equity. A court of law, it is true, might do the same thing, if it had the power; and there is no direct impossibility to prevent its having such powers; yet, as such is not the case in the distribution of law and equity jurisdiction, as the systems now stand, relief can only be had in equity. - IN BANK. Dec. Term, 1846. Wilson and others v. Chalfant. In the case, however, before the Court, no such difficulty exists, as those notes were lost after they were due. Judgment for Plaintiffs. BIRCHARD, J., argued that judgment should be entered for the plaintiffs, but doubted the accuracy of the position taken by the majority of the Court. He held that the weight of the evidence showed that the notes sued for were lost and out of circulation. Also, that the Court might order a stay of execution until an indemnifying bond should be filed by the plaintiff. On the hypothesis that the negotiable paper had been found and put in circulation, and had come to the possession of a bona fide holder, for a valuable consideration, in the regular course of trade, without notice, he was of opinion that, under the rules of the commercial code, such holder might collect it. That the defendant, whether the paper was past due when negotiated or not, could not set up as a defence any matter that arose subsequent to the good title acquired by the bona fide holder. ELISHA WILSON AND OTHERS vs. ROBERT CHALFANT. If one enter upon the land of another by virtue of a parol license, given for a consideration paid, and erect fixtures, trespass will lie against the owner of the land for destroying them. A parol license executed, is irrevocable. A license to erect fixtures upon the land of another, executed, gives the right of possession to control, repair and protect the fixtures against the owner of the fee. What is the nature and extent of the estate or interest in him who erects the fixtures query? THIS suit comes into this Court by a WRIT OF ERROR to the Court of Common Pleas of PERRY County. The original action was trespass, brought into the Common Pleas by an appeal from a justice of the peace. In the Common Pleas, the plaintiffs in error were declared against by the defendant in error, plaintiff in the court below, for breaking Wilson and others v. Chalfant. 1846. and entering the close of the defendant in error, on the 1st day IN BANK. of November, 1842, with a continuando, and with force and Dec. Term, arms, in the township of Hopewell, &c., tearing down, breaking to pieces, damaging, demolishing and destroying divers, to wit, two abutments of a milldam of the defendant in error, erected by him across a watercourse called Jonathan's Creek, for the purpose of supplying a certain sawmill with water, &c., of the value of $50, &c. This is the first count. The declaration contains a second count in trespass, for destroying one abutment of a certain milldam, the property of the defendant in error, of the value of $50, &c., &c., without any averment, in express terms of the breach of the close. The plaintiff in error plead: The general issue to both. counts, liberum tenementum, and that the said abutment, so demolished, was upon the freehold of the plaintiffs in error. The replication now assigns the locus in quo, specially, and avers that the plaintiff in error, for a valuable consideration, a part of which was paid, agreed to permit the defendant in error to abut a milldam upon his land, and in pursuance of this agreement, and with the consent of the plaintiff in error, he entered and erected the abutment on the land of the plaintiff in error, and that plaintiff in error afterwards broke and entered the close on which the abutment was so erected with his consent, and demolished it, &c. This replication was demurred to, and the demurrer overruled; and, thereupon, the defendant rejoined, averring the contract set up in the replication was by parol, without any note or memorandum in writing, and, therefore, void, under the statute for the prevention of frauds and perjuries. To this rejoinder, the defendant in error demurred. The Court of Common Pleas sustained the demurrer to the rejoinder, which disposed of this special issue, and the cause was submitted to a jury in the Common Pleas, at the November term, 1845, on the general issue of not guilty, by all the plaintiffs in error, and verdict and judgment for the defendant in error. IN BANK. Dec. Term, 1846. appears Wilson and others v. Chalfant. A bill of exceptions was taken during the trial, from which it that the defendant in error gave to the jury evidence tending to show that the defendant in error had constructed the abutments, mentioned in the pleadings, on the soil and freehold of one of the plaintiffs in error, Elisha Wilson, by the parol license and consent of the said Elisha, given for a consideration agreed upon between the parties, and that the said abutment had been maintained from the 4th day of September, 1838, until the time of the alledged trespass, when the plaintiff in error, E. Wilson, with the other plaintiffs in error, by his orders, destroyed the same; and the evidence being closed, the counsel for the plaintiffs in error asked the Court to instruct the jury, that if the act complained of was done by the plaintiffs in error, on the freehold of said E. Wilson, by himself and by his orders, and if the defendant in error had no other right than what was conferred by a parol license to construct the abutment thereon, and the construction and maintenance thereof, for the term aforesaid, and if there was no written paper or note, in writing, evidencing said license, the defendant in error could not maintain the action; which instructions the Court refused to give, but, on the contrary, charged the jury, that, on those facts, the action would lie, and they ought to find for the defendant in error. To this charge of the Court, the counsel for the plaintiffs in error excepted. Several errors are assigned: 1. That the declaration is insufficient. 2. That the Court erred in overruling the demurrer to the defendant in error's replication. 3. In sustaining the demurrer to the plaintiffs in error's rejoinder. 4. That the Court erred in not instructing the jury as prayed, and in the instructions given. T. Ewing, for the Plaintiffs in Error, contended First That Chalfant acquired no right to the locus in quo, by the parol license, the same being void under the statute of |