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to bearer,247 or on a promise to accept a bill, which was lost after it had been discounted on the faith of the promise.248 A court of equity, on indemnity given by the owner, will compel the drawer to furnish a new bill,249 or a new coupon bond,250 or will enforce a lost acceptance.251 And, where equity has once taken jurisdiction. in the case of a lost note, it will not be defeated by the subsequent finding of the note.252 An action will lie in equity upon a lost bill, even though there might be an action at law.258 And a bill in equity may be filed for discovery upon a lost bill, with an allegation that there is no sufficient remedy at law.254

But a court of equity will only take jurisdiction upon affidavit ́ of loss and tender of indemnity.255 And it will not interfere to enforce bank notes which are alleged to have been destroyed by fire, but cannot be identified by number or otherwise, and are not clearly proven to be the notes of the defendant.256 And, where a bank note is expressly payable at a particular place, equity will not grant relief to the owner, upon its loss, until after demand made at such place.257 Nor will a court of equity entertain a suit against the ac

N. C. 122. Or nonnegotiable bond. Reeves v. Morgan, 48 N. J. Eq. 415, 21 Atl. 1040.

247 Rowley v. Ball, 3 Cow. (N. Y.) 303; Butler v. Joyce, 20 D. C. 191. Or a note payable to "A. or bearer." Adams v. Edmunds, 55 Vt. 353.

248 Savannah Nat. Bank v. Haskins, 101 Mass. 370. And see § 1698, supra. 249 Rhodes v. Morse, 14 Jur. 800. Especially after the lost check is barred by the statute of limitations. Taylor v. Scrivens, 1 Beav. 571.

250 New Orleans, J. & G. N. R. Co. v. Mississippi College, 47 Miss. 560.

251 City of Bloomington v. Smith, 123 Ind. 41, 23 N. E. 972.

252 Crawford v. Summers, 3 J. J. Marsh. (Ky.) 301. Especially if found in adverse hands. Force v. City of Elizabeth, 28 N. J. Eq. 403.

253 Davies v. Dodd, 4 Price, 176. Although the loss was not disputed, and no discovery was asked. Chewning v. Singleton, 2 Hill (S. C.) 371. Equity seems, in North Carolina, to have been preferred, because the loss could be proved in equity by the plaintiff's oath, which could not be done at law. Chaney v. Baldwin, 46 N. C. 78. And equity is the best jurisdiction, where both are concurrent. Davis v. Benbow, 2 Bailey (S. C.) 427. And it is not ousted in Alabama by the statute providing for action at law on a lost bill. Tindall v. Childress, 2 Stew. & P. (Ala.) 250.

254 Temple v. Gove, 8 Iowa, 511. And see Mossop v. Eaden, 16 Ves. 430. 255 Smith v. Walker, 1 Smedes & M. Ch. (Miss.) 432.

256 Irwin v. Bank, 1 Humph. (Tenn.) 145.

257 Streater v. Bank, 55 N. C. 31.

ceptor in favor of one who intended to become an indorsee, but had not obtained the indorsement before the bill was destroyed.258 But, where the last indorsee of a lost bill sues the acceptor in equity, it is not necessary to make the prior indorsees parties defendant.259

Action at Law.

261

§ 1697. It is now settled in Great Britain that the owner of a negotiable bill which has been lost or destroyed cannot bring suit upon it at law.260 This is partly because of the difficulty in making legal proof of the bill, and partly because of the inability of the court to require indemnity. In like manner, the owner of a lost note payable to bearer cannot recover on it at law.2 And this has been held to be so whether the bill was actually indorsed or not.26 But if the bill was specially indorsed before its loss, and therefore not negotiable without further indorsement, it has been held that the owner might bring suit on it at law, and offer secondary evidence of its contents.263 If it was not indorsed when lost, an action at law

258 Edge v. Bumford, 31 Law J. Ch. 805.

259 Byles, Bills, 384; Chit. Bills, 301; Macartney v. Graham, 2 Sim. 285; Foley v. Carlon, Younge, 373. But see West v. Patton, Litt. Sel. Cas. (Ky.) 405.

260 Byles, Bills, 381; Benj. Chalm. Dig. art. 144; Chit. Bills, 307; 1 Edw. Bills & N. § 420; Story, Prom. Notes, § 108; Hansard v. Robinson, 7 Barn. & C. 90; 9 Dowl. & R. 860; McNair v. Gilbert, 3 Wend. (N. Y.) 346. But see. as to recovery on an acceptance that was destroyed by mistake after renewal by a forged acceptance, Wright v. Maidstone, 1 Kay & J. 701. And see 2 Pars. Notes & B. 290. So, action lies at law where a note has been destroyed. and is already barred by the statute of limitations. Moses v. Trice, 21 Grat. (Va.) 556; Moore v. Fall, 42 Me. 450. But the mere circumstance that a note was barred by the statute of limitations before it was lost will not enable the loser to sue. Chit. Bills, 306; Poole v. Smith, Holt, 144. But see 2 Pars. Notes & B. 290, 296; Story, Bills, § 447.

261 Kirby v. Sisson, 2 Wend. (N. Y.) 550. Though indemnity is offered. Pierson v. Hutchinson, 2 Camp. 211.

262 Byles, Bills, 381; Bevan v. Hill, 2 Camp. 381; Ramuz v. Crowe, 1 Exch. 167.

263 Chit. Bills, 306; 1 Edw. Bills & N. § 427; 2 Pars. Notes & B. 291; Long v. Bailie, 2 Camp. 214; Mossop v. Eadon, 16 Ves. 430; Depew v. Wheelan, 6 Blackf. (Ind.) 485; Branch Bank v. Tillman, 12 Ala. 214; Kirkwood v. Bank, 40 Neb. 484, 58 N. W. 1016; Id., 40 Neb. 497, 58 N. W. 1135; Clark v. Snow, 60

266

will still lie on the original consideration.26 And, if it was not negotiable, the action may be either on the bill or the consideration.265 But the owner of a negotiable bill which has been destroyed cannot bring suit at common law to recover the consideration.20 Where the defendant has wrongfully obtained possession of the bill, and withholds it from the owner, a suit may be brought upon it at law, 267 So, if suit is brought at law on a negotiable bond or note, its accidental destruction pending the suit will not defeat the action.268 But if the bill is lost after action brought, and the defendant resists the action, and puts the plaintiff to his proof of the bill under the ordinary issues, he must account for its nonproduction.209 If, however, the bill is lost before its maturity, no action. at law lies, although indemnity is offered.270 And it has been said to make no difference whether the bill is due or not at the time of its loss, only a court of equity having jurisdiction in either case.271

Vt. 205, 14 Atl. 87; Adams v. Baker, 16 R. I. 1, 11 Atl. 168; Boteler v. Dexter, 20 D. C. 26. So, where there is no evidence that it has been negotiated or indorsed. Chaudron v. Hunt, 3 Stew. (Ala.) 31.

264 Rolt v. Watson, 12 Moore, 510.

265 Byles, Bills, 382; Chit. Bills, 305; 2 Daniel, Neg. Inst. 483; 1 Edw. Bills & N. § 428; 2 Pars. Notes & B. 289; Wain v. Bailey, 10 Adol. & E. 616; Price v. Price, 16 Mees. & W. 243; Ramuz v. Crowe, 1 Exch. 167. And see Rolt v. Watson, 4 Bing. 273. So, upon a sealed note which was not indorsed by the payee. Whitesides v. Wallace, 2 Speer (S. C.) 192. Or on a note payable to A. B., his agent or attorney. Templin v. Krahn, 3 Ind. 373. So, in Mississippi, where the note is subject to equities in the indorsee's hands. Clark v. Reed, 12 Smedes & M. 551.

266 Byles, Bills, 381; Chit. Bills, 304; Crowe v. Clay, 9 Exch. 604; Dangerfield v. Wilby, 4 Esp. 159; Champion v. Terry, 3 Brod. & B. 295, 7 Moore, 130. 267 Chit. Bills, 301; 2 Pars. Notes & B. 292; Smith v. McClure, 5 East, 477; Pierson v. Hutchinson, 2 Camp. 212; 6 Esp. 126. And the suit must be for a lost note under the Tennessee statute. Powers v. Fitzhugh, 10 Humph. 415. 268 Bliss v. Turnpike Co., 9 Dana (Ky.) 265. And he will not be compelled to proceed after the loss as upon a lost note. German Sav. Bank v. Kerlin, 53 Mo. 382.

269 Byles, Bills, 303, 382; Poole v. Smith, Holt, 144.

270 Pierson v. Hutchinson, 2 Camp. 211; 6 Esp. 126.

271 Byles, Bills, 382; 2 Daniel, Neg. Inst. 478; Story, Prom. Notes, § 450; Crowe v. Clay, 9 Exch. 608; Rowley v. Ball, 3 Cow. (N. Y.) 303. So, Moses v. Trice, 21 Grat. (Va.) 556. But see, contra, Chit. Bills, 307; 2 Pars. Notes

& B. 296; Thayer v. King, 15 Ohio, 242; Mowery v. Mast, 14 Neb. 510, 16 N.

So, where a bill payable to bearer is lost after a promise of payment by the acceptor, he will not be liable in a suit at law on such promise.272

Statutes-Law and Equity Blended.

275

ex

§ 1699. In some of the United States provision is made by statute for bringing an action at law upon a lost bill or note.273 And in states having no separate courts of law and equity recovery may be had in an action at law on tender of sufficient indemnity.274 Thus, where a negotiable note has been indorsed in blank, and afterwards stolen, the owner may recover upon it, on giving indemnity,2 cept as against an indorser, who would require the note itself for his protection, and reimbursement as against prior parties.276 A lost check is within the statute in New York, and its contents may be proved by parol.277 So, recovery may be had upon bank notes against the bank of issue, on proof of their destruction or loss.278 Or where a bank note has been cut into two parts for transmission,

W. 839. And judgment in the action will bar all further recovery. Elliott v. Woodward, 18 Ind. 183. And in such case it need not be shown that it had not been indorsed. Sloo v. Roberts, 7 Ind. 128.

272 Byles, Bills, 382; Chit. Bills, 303; Hansard v. Robinson, 7 Barn. & C. 95; Davis v. Dodd, 4 Taunt. 602.

273 ALABAMA (Code, § 2597); ARKANSAS (Sand. & H. Dig. § 5610); ILLINOIS (Hurd's Rev. St. c. 98, § 14); NEW JERSEY (2 Gen. St. p. 2605, 87); NEW YORK (Code Civ. Proc. § 1917).

274 Almy v. Reed, 10 Cush. (Mass.) 421; Bridgeford v. Manufacturing Co.. 34 Conn. 546. And recovery may be had on a note destroyed by fire as a lost note, on giving an indemnity bond. McGregory v. McGregory, 107 Mass. 543.

275 Fales v. Russell, 16 Pick. (Mass.) 315. But where it has been indorsed in blank, and lost, and afterwards assigned by the indorsee, the assignee cannot sue in his own name at law. Willis v. Cresey, 17 Me. 9.

276 Tuttle v. Standish, 4 Allen (Mass.) 481. Nor is such indorser liable on the original consideration. Champion v. Terry, 3 Brod. & B. 295. But in Tennessee the statute provides for suit against the indorser of a lost note. Union Bank v. Osborne, 6 Humph. (Tenn.) 318.

277 Jacks v. Darrin, 3 E. D. Smith, 548.

278 Whether destroyed, Bank of Louisville v. Summers, 14 B. Mon. (Ky.) 306; or lost, Commercial Bank v. Benedict, 18 B. Mon. (Ky.) 307. But not under the statute, in ALABAMA (Code, § 2597).

and one half is lost, inasmuch as it is no longer negotiable, recovery may be had on the other half.279

Loss-How Pleaded.

§ 1700. Where an action is brought on a note that has been lost or destroyed in whole or part, it is not necessary to declare upon it specially, but the plaintiff must account for the loss before he can offer secondary evidence of its contents.280 And he cannot recover on a lost note, on the money counts, without proof that it has been lost or destroyed, and is therefore not capable of being the object of a further suit.281 Where the loss is averred by the plaintiff to excuse its nonproduction, the defendant may take issue upon the fact of loss.282 And, if the note is not specially declared on as lost, the loss must now be set up in Great Britain by plea, or the plaintiff may recover on secondary evidence on proof of the loss.283 In some states a complaint is demurrable unless it contains an affidavit of the owner stating the fact of the loss.284 But pleading to the merits of the action is a waiver of such affidavit after verdict.2 285

Evidence of Loss-Affidavit.

§ 1701. In order to give the court jurisdiction in an action upon a lost bill, the plaintiff must prove its former existence.286

But, if

279 Bank of U. S. v. Sill, 5 Conn. 106. And the whole amount may be recovered on the common counts. Union Bank v. Warren, 4 Sneed (Tenn.) 167. 280 Vanauken v. Hornbeck, 14 N. J. Law, 178; Adams v. Baker, 16 R. I. 1, 11 Atl. 168. And the declaration need not show whether the bill was due or indorsed before it was lost. Chaudron v. Hunt, 3 Stew. (Ala.) 31.

251 Dangerfield v. Wilby, 4 Esp. 159.

282 Campbell v. McCrea, 11 U. C. Q. B. 93.

283 Byles, Bills, 382; Blackie v. Pidding, 6 C. B. 196; Charnley v. Grundy, 14 C. B. 608.

284 Bell v. Moore, 9 Ala. 823; Rowland v. Daily, 45 Ga. 129; Carter v. Vaulx, 2 Swan (Tenn.) €39.

285 Union Bank v. Osborne, 6 Humph. (Tenn.) 318.

286 Enston v. Friday, 2 Rich. Law (S. C.) 427; and execution, Jackson v. Jackson, 6 Dana (Ky.) 257; and also (it has been held) that it was not paid, Usher v. Gaither, 2 Har. & McH. (Md.) 457. But see, contra, 2 Pars. Notes & B. 307. Proof of its destruction will make strict proof of its execution un

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