Seig v. Acord's Executor. own right, he could not retain it out of the assets, and charge the estate with it. But in this case there is no promise of the administratrix to pay. It is only an admission, by one of a joint administration, that the account was correct. And where there is a joint administration, if the admission of one could bind the estate, which is, to say the least, problematical (Tullock v. Dunn, Ry. & Mood. 416; 21 Eng. C. L. 478; Scholey v. Walton, etc., 12 M. & W. 509, cited 1 Rob. Pr. [new] 573), it seems to be well settled, that the acknowledgment by a personal representative, that the claim is just, does not imply a promise to pay, as it would, if the acknowledgment had been made by the decedent himself; and, therefore, does not create a charge against the estate. ABBOTT, C. J., in Tullock v. Dunn, supra; Thompson v. Peter, 12 Wheat. 565; Oakes v. Mitchell, 15 Me. 360; Bunhur v. Athedyn, 35 id. 364; cited 1 Rob. Pr. (new) 575; Head's ex'rs v. Manners' adm'rs, 5 J. J. Marsh. 255. We are of opinion, therefore, that the decree of the circuit court is erroneous in overruling the exception to this item in the account of the commissioner, designated as report No. 2, and in allowing the same as a debt against the estate of John Falls, deceased. But as the report of commissioner No. 3, filed the day of June, 1855, ascertains what is the true state of account, omitting this item as a debit against the estate, we are of opinion that the circuit court erred in adopting the report No. 2, of Commissioner Hendren, and in not adopting report No. 3 of said commissioner. The court is of opinion, therefore, that the decree of the circuit court, so far as it is in conflict with this opinion, should be reversed, with costs to the appellants, and in all other respects should be affirmed. Decree accordingly. Moses v. Trice. MOSES, plaintiff in error, v. TRICE. (21 Gratt. 556.) Promissory note—lost note—payment — effect of renewal. An action at law will not lie on a lost negotiable promissory note. Defendant proposed to pay his note to plaintiff, but at plaintiff's request the note was renewed, upon the understanding that it should be deposited in bank for collection. Subsequently dendant deposited in his own name the amount of the note in the bank, which was burned, with the contents, before the note had matured or been deposited. Held, that defendant was liable for the amount of the note. A promissory note given for a debt does not operate as an extinguishment or payment of the debt, unless it be so accepted by the creditor, and a note in renewal is but a continuation of the debt, and if it is not paid at maturity, the creditor may sue upon it, or upon the original cause of action. ACTION by Trice against Moses, as maker, and Davis, as indorser, of a lost negotiable note for $21,000. It appeared that in the latter part of 1863, or early in 1864, Trice lent Moses about $25,000 of Confederate currency, who executed therefor his negotiable note, with Davis as indorser, payable in ninety days. This note was renewed from time to time, and at one time $4,000 of the principal was paid. One of the renewed notes fell due on the 4th of January, 1865, and at that time Moses offered to pay the amount of it; but, at the request of Trice, another renewal note was given, payable at ninety days at the Bank of Virginia, with the understanding that it should be deposited in the bank for collection. Subsequently Moses deposited, in his own name, at the bank, money equal or exceeding the amount of the note, but the bank was burned before the note came due, and before it had been deposited for collection. Payment having been refused, the note was put in the hands of a notary, from whom it was stolen. The rulings, charges, and refusals to charge, are sufficiently set out in the opinion. Verdict and judg ment for plaintiff. Defendant appealed. Keily, for appellant. Lyons, for appellee. VOL. VIII.-77 Moses v. Trice. STAPLES, J. This case presents the question, whether an action at law can be maintained upon a lost negotiable note transferable by delivery. No decision can be found in the Virginia Reports involving this precise point. In England the doctrine is firmly established, that such an action cannot be maintained; and the sole remedy of the owner is in a court of chancery, which can adjust the equities of the parties, and require suitable indemnity as a condition of relief. Hansard v. Robinson, 7 Barn. & Cress. 90; Ramuz v. Crowe, 1 Exch. 166; 18 Eng. Law & Eq. 514. In this country there has been some conflict of opinion on the subject; but the great weight of authority is in harmony with the English doctrine. In some of the States statutory remedies have been provided, by which most of the difficulties standing in the way of actions at law have been removed. In other States having common-law and equitable powers blended in the same courts, it is the constant practice of those courts to assume jurisdiction in this class of cases. Thus, in Massachusetts, it has been decided that the court, holding a just regulating power over the judgment and proceedings before it, has authority to prescribe an equitable security to the maker of a lost note, by a proper and suitable indemnity. Fales v. Russell, 16 Pick. 315. And so in Pennsylvania, it is held that the failure to indemnify is not in bar of the action, but is merely a prerequisite to an execution to enforce the judgment, and the right to restrain such execution is an equitable power vested in the courts, to be administered with the machinery of common-law forms. It is obvious that these principles have no application in those States where the common law and equity tribunals are separate and distinct. In these latter, we find the courts of common law steadily refusing to take jurisdiction of suits upon lost negotiable instruments. 2 Pars. on Bills and Notes, 296-298 and notes; 2 Rob. Prac. (new ed.) 220. The learned counsel for the appellee has cited a number of cases which he supposes to be in conflict with these views. Some of these cases show that when a bank note has been cut in halves, and one-half lost, the holder may recover upon the other half at law. Upon this proposition there is also much conflict of decision. But whatever may be the rule in some of the American courts, in regard to action upon bank notes, the cases of the Bank of Virginia v. Ward, 6 Munf. 166; Farmers' Bank of Virginia v. Reynolds, 4 Rand. 186, indicate that in this State no such action can be maintained; because the owner can only recover on establish Moses v. Trice. ing his title by the judgment of a court of equity, and giving a satisfactory indemnity to secure the bank against future loss from the appearance and setting up the other half of such note. In Renner v. Bank of Columbia, 9 Wheat. 581, the note was lost after suit brought, not by the plaintiff or his agents, but by the officers of the court. The holder had a perfect right of action at law at the time of the institution of his suit; he could not be deprived of that right by an accident in no manner attributable to his negligence, and turned round to another forum for redress. This rule is recognized in other cases; and is not in conflict with the general principle applicable to negotiable instruments. That principle is, that the party to such an instrument, when he is called upon to pay it, has the right to insist it shall be produced and delivered up to him. And this rule is not varied because suit is brought and payment demanded under compulsory process of law. In either case the maker has the right to call for the production.of his note. As the owner, however, in case of loss of the instrument, cannot do this, the courts allow a recovery upon the terms of his giving proper indemnity. A court of common law cannot require such indemnity as a part of its judgment. It can neither impose terms upon the plaintiff as a condition of such judgment, nor prevent the issue of an execution thereon. In Pierson v. Hutchison, 2 Camp. 211, Lord ELLENBOROUGH said, whether an indemnity would be sufficient or insufficient, is a question of which a court of law cannot judge. See, also, Greenway, ex parte, 6 Ves. 862; Aranguese v. Scholfield, 38 Eng. L. & Eq. 424; 1 Story's Eq. Jur., §§ 84, 85. Numerous other authorities might be mentioned to the same effect. They establish that the only remedy in such cases is in a court of equity, where all the circumstances of the loss can be fully investigated, and a suitable and proper indemnity provided. It is insisted, however, that these principles do not apply in the case of notes lost after maturity. The counsel for the appellee says it is clear that a protested negotiable note has no more negotiability, according to the law merchant, than a bond or other paper originally not negotiable. No authority is cited in support of this proposition. I will not say no cases or dicta can be found to sustain it. It is certainly in conflict with the leading decisions and the opinions of the most accurate writers on commercial law. In Story on Promissory Notes, § 178, it is said "a negotiable note may be trans Moses v. Trice. ferred at any time while it remains a good, subsisting, unpaid note, whether before or after it has arrived at maturity; and, in the latter case, even though it be protested for non-payment, and bears upon its face the marks of its dishonor." In Miller v. Davis, 14 Gratt. 1, 13, Judge MONCURE, speaking for the court, says, in reference to overdue notes: "It has long been settled that they are negotiable; and it belongs to the legislature to make them assignable only." See, also, Baxter v. Little, 6 Metc. 7; 2 Rob. Prac. (new ed.) 253; 2 Parsons on Bills and Notes; Chitty on Bills, 217; Redf. & Big. Leading Cases on Bills of Exchange and Promissory Notes. It is true that the person taking a dishonored note takes it subject to all the equities attaching to the instrument in the hands of the original parties; and it may be conceded, for the sake of argument, that, when the note has been lost, he holds it subject to all the objections which affected it in the hands of the party who first tortiously transferred the note. But the answer given to this reasoning is, that it is part of the contract of the maker to pay on the presentment of the instrument to him for that purpose, and he has, therefore, a right to its possession as his voucher against a future demand. Besides, the maker may not be able to show the note was lost after maturity; and he is not to be exposed to such risk without indemnity. In Hansard v. Robinson, 7 Barn. & Cress. 90, Lord TENTERDEN said: "If the bill should afterward appear, and a suit be brought against the acceptor, a fact not absolutely improbable in the case of a lost bill, is he to seek for the witnesses to prove the loss, and to prove that the new plaintiff must have obtained it after it became due? Has the holder a right, by his own negligence or misfortune, to cast this burden upon the acceptor, even as a punishment for not discharging the bill on the day it became due? We think the custom of merchants does not authorize us to say that this is the law." It is impossible to deny the force or soundness of these views. They are fully sustained by the adjudicated cases by the most eminent writers on Commercial Law, and by the opinions of three of the judges of this court; and must be regarded as the established doctrine of this State. Miller v. Davis, 14 Gratt. 1; 2 Greenl. Bill of Exchange and Promissory Notes; Story on Promissory Notes, § 450, note 2; Byles on Bills, 300; 2 Parsons or Notes and Bills, 395; Edwards on Bills, 297. When, however, it appears that the note or bill has beer destroyed, |