Reynolds and Wines, vs. Asa M. French, et al., 8 Vt. 85

The opinion of the court was delivered by Phelps, J. The production of a promissory note is not always indispensable to a recovery upon it. Such production is dispensed with, where the note is proved to have been destroyed, and, in this State, where it is shown tohave been lost. The reason why a recovery cannot be had upon a lost note which is negotiable in England is, that the note may find its way into the hand of a bona fide holder who may be entitled to payment.

But here no such reason exists, as by force of our statute, restraining the negotiability of such notes, the transfer of a note is put upon the footing of an assignment of a chose in action. And it is also true, that a recovery may be had upon a note after it has been voluntarily given up to the maker. This doctrine was fully recognized in Edgell vs. Stanford, 6. Ver. Rep. 551. And it seems immaterial in such case, whether the plaintiffcount specially on the note, or generally in indebitatus assumpsit.

If there be any case of the kind where a recovery may be had, it would seem to be that in which the note is obtained from the holder by fraud and imposition. The plaintiff may doubtless treat the transaction, which resulted in giving up the note, as fraudulent and void, so far at least as to the agreement to accept the smaller or new note in full satisfaction. That a Court of Chancery would set aside a discharge given under such circumstances, and revive a security procured to be given up or cancelled by fraudulent representa-lions, is settled by the case of Richards et al. vs. Hunt, 6 Vt.

R. 251. if,that decision requires authority to support it, it is to be found in Phettyplace vs. Sayles, 4 Mason 312 and Irving et al. vs. Humphry, 1 Hop. 284. . , Can a court of law afford relief in a similar case ? .The case is in principle, the same, as if a discharge under seal had been given without a surrender of the notes. In that case a court of law would, upon common principles, treat the discharge as void, if obtained by fraud. The only difference in this case is, that the plaintiff is unable to produce the notes on trial; and in this respect, the cause comes within the rule of Edgell vs. Stanford.

The action of assumpsit proceeds upon equitable grounds, and in a case of this nature, where a full and adequate remedy may bo bad at law upon common principles, there is no good reason for driving the party to the more expensive and less expeditious remedy in chancery. In Richards et al. vs. Hunt, no relief cojuld be had at Jaw, as the party was discharged jlfbr. imprisonment on the execution. No suit could be sustained upon the jail bond, as there was no escape, and as to the judgment, there was an apparent satisfaction of record. In this case no technical difficulty is encountered.

We are therefore of opinion, that the evidence offered in the court below should have been admitted. We do not deem it necessary to decide upon which count the plaintiff' may be entitled to recover, though, if the amount of the notes be still due, it is difficult to discover any good-reason why the party may not recover upon either. It is suggested that some of the defendants may have been sureties, and upon this assumption it is argued that if the notes have been voluntarily given up the sureties are discharged.

It is unnecessary to discuss that question, as it does not appear on record that any of the defendants are sureties. The1 evidence having, been rejected the fact was not ascertained. Should it so appear upon a future occasion, it will then be in due season to detens-ine 'its effect. It .is also urged that the reception of parol proof is dangerous, as-there may have been endorsements on the notes, of the purport of which no proof can be had. This argument-however applies wdth equal force to all cases of actions upon notes lost or destroyed.

But in this case, the notes were given up to the defendants, and of course the evidence of such endorsements is still in their own power, unless they have of theirlown motion destroyed them. The remarks of the Chief Justice in Edgell vs. Stanford are relied upon as sustaining the position, that if a note be voluntarily given up to be cancelled it can not afterwards be made tlfe ground of recovery.

The remarks alluded to were made with reference to the mere substitution of one security for another, and to the question, with respect to which different decisions have been bad, whether the acceptance of a new security of no higher nature is a satisfaction, or whether the party may resort to his original cause of action. He had no reference to a case like this. Indeed the whole drift of his opinion was to establish the right of recovery in such a case. Judgment reversed and cause remanded to county court for a new trial.