WILLIAM MOORE vs. AMOR FRAME

WILLIAM MOORE vs. AMOR FRAME. The jurisdiction of a justice of the peace to try an action founded on a lost note affirmed. Certiorari to a justice of the peace. Record. Amor Frame vs. William Moore; action .on a lost note; debt ^15 41. November 16, 1841, summons, appearance, trial by referees, report and judgment for plaintiff for $15 38. The exception was, that the cause of action was not cognizable before a justice of the peace. The defendant also alledged diminution, because the magistrate lad not returned the special cause of action by certifying whether any copy or description in writing of the alledged lost note was filed, and, if so, returning the same. Wkileley, for plaintiff below. The cause of action- was properly .vithin the magistrate’s jurisdiction. An action may be had at law >n a lost bill or note. (Gkitty on Bills, 127-9, (290;) 12 Mod. 310; 1 Barn. & 'Adol. 538.) J. A. Bayard, for defendant. Wherever the party is entitled’ to .ndemnity there cannot be a suit at law, for a court of law cannot 3nforce indemnity. A note payable to the holder, or so indorsed as o be transferable to a bona fide holder, cannot be sued -upon in a ourt of law if lost before due, although indemnity has been tender-lid. (1 Chilly on Bills, 19S; 2 Camp. 211, Pierson vs. Hutchinson.) he record in this case ought to have set out the note, so as to show whether it was such as entitled the party to indemnity. It does not how enough to sustain the action. Wkileley.— The cause of action was cognizable before the magis-,rate generally; under certain circumstances the suit might have been efeated, as where it appeared that the note was of a particular de-jcription, and was lost before due. But the court will not presume his. They will rather presume in support of the record. An action It law may well be brought on a lost note. This is such an action, Ind.there was an appearance, trial by referees, report and judgment jr the plaintiff. Had the suit been open to the objections now made, is fair to presume they would have been made below. It is not íe case of a want of jurisdiction, where, I admit every thing must Ippear by the record that is necessary to give the jurisdiction, (2 farr. Rep. 345;) but it is a case of admitted jurisdiction, with alledg-ed circumstances of defence, to take it out of the cognizance of this or any other court of law. These were matters of evidence below. Whitele-y, for plaintiff. J. A. Bayard, for defendant. [MAJORITY] If a fuller record would have shown this state of things, the plaintiff in the certiorari should have acted on his allegation of diminution, and brought up a more perfect record. Judgment affirmed.