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him, a copy sworn to was admitted to be good evidence to prove it. Anonymous, I
Ld. Raym. 731. See other cases cited infra, p. 314, note o.

{x) Hinsdale t. Bank of Orange, 6 Wend. 378 ; Bhxde v. Noland, 12 id. 173 ; Row-
Icy ». Ball, 3 Cowen, 303 ; Pintard v. Tackington, 10 Johns. 104 ; Chaudron v. Hunt,
8 Stew. 31 ; McNair v. Gilbert, 3 Wend. 344; Whitesides v. Wallace, 2 Speers, 193:
Angel V. Felton, 8 Johns. 149 ; Bank of U. S. v. Sill, 5 Conn. 106 ; Hough v. Barton,
20 Vt 455 ; Walton v. Adarns, 4 Calif. 37 ; Price v. Dunlap, 5 id. 483 ; Swift
25*



ii)-i NOTES AND HILLS. [CH. IX.

ill England. (^) Moi'C recent cases in that country sent tlie
plaintiff to equity, even though he could satisl'y a jury of the
destruction of his bill, unless it be originally non-negotiable.

The ground on which this rule rests seems to be threelold.
First, that he who pays a bill is entitled to receive it on payment,
as his voucher of discharge. Secondly, that the proof of destruc-
tion cannot be absolute, and the bill may subsequently be found



t'. Stevens, 8 Conn 431 ; Viles v. Moulton, 11 Vt. 470; Moore «. Fall, 42 Maine, 450;
Ivoss V. Bank of Burlington, 1 Aikcns, 43; Wright v. Jacobs, id. 304 ; Fatton v. State
Hank, 2 Nott & MeC. 464 ; Aborn v. Bosworth, 1 li. 1 401 ; Dean v. Sptaknian,
7 Blackf. 317; Branch Bank at Mobile v. Tillman, 12 Ala. 214; Anderson Bridge
Co. V Appk'gate, 13 Ind. 339; Littler v. Franklin, 9 id. 216; Bradley » Long, 2
Strob. 160; Palmer v. Logan, 3 Scam. 56; Rogers v. Miller, 4 id. 333; Wade
('. Wade, 12 lU. 89; Des Arts v. Lcggett, 5 Duer, 156, 16 N. Y 582; Thayer v. King,
15 Ohio, 242. In Fisher v. Mershon, 3 Bibb, 527, a bill in equity lay to recover the
nmount of a note destroyed without fault of the holder. On destroyed bank-notes the
bank must pay the amount, since the destruction does not alter its obligation. Wade
V. N. O. Canal, &c. Co., 8 Rob. La. 140 ; Des Arts v. Leggett, supra; Bank of Louis-
ville ('. Summers, 14 B. Mon. 306 The sworn copy of a destroyed protest may be
read in evidence. McGarr v. Lloyd, 3 Barr, 474 The destruction or loss of a " single
bill " does not change its nature from a specialty to a parol contract. Myers v. Sealy,
5 Rich. Law, 473.

{tf) Pierson v. Hutchinson, 2 Camp. 211 ; Mayor v. Johnson, 3 id 324; ChampioD
r. Terry, 3 Brod. & B. 295, 7 J. B. Moore, 130; Dangerficld v. Wilby, 4 Esp. 159.
So see a somewhat analogous case, Pearce v. Creswick, 2 Hare, 286. In Hansard v.
Uobinson, 7 B. & C. 90, in 1827, Lord Tenterden endeavored to establish the rule that
proof of the destruction of a bill was not sufficient ground for the remedy at law. In
that case, there was no allegation or evidence of destruction, and hence a part of the
opinion may be considered obiter. It has been adopted, however, quite extensively in
some quarters. Mr. Justice Story, quoting the passage just cited in his Prom. Notes,
^ 107, adds : " These considerations, although put in a mere interrogatory form, pre-
sieut the full stress of the argument against any right of the holder to require payment,
or any duty on the part of the maker to make payment of such a negotiable note, al*
leged to be lost or destroyed, which may pass title by mere delivery." Ibid. § 108.
Afterwards, repeating the point, he says : " A distinction has sometimes been taken
between the case of a note's being lost, and the case of its being destroyed, and non-
existent in reruin natura. In the latter case it has been thought that an action may be
maintainable at law, since the destruction of the note takes away the possibility of its
getting into the possession of any subsequent bona fide holder. But there is this re-
maining difficulty, that evidence which is merely presumptive may be offered of the
destruction of the note, and then it may expose the maker to all the inconveniences of
« subsequent second payment, if the note should subsequently reappear. And there
in no more hardship in sending the holder into equity for redress in the case of the de-
Ntruction of the note, than there is in the case of the loss of the note." Ibid. § 449.
He adds, that " the reasoning of Lord Tenterden in Hansard v. Robinson applies
equally as strongly to cases of the destruction of a note, as it docs to the loss of a note.'*
Ibid, note 1. But it seems to be tinnly cstalilishcd. both in England and America,
that a destroyed note may be sued at law. See notes w and u.



CH. IX.] RIGHTS A^^D LIABILITIES OF FINDER 295

aud presented, though supposed to be destroyed. Thirdly, that
the paper, if negotiable, may have been* negotiated before its
destruction, so that when destroyed it was the property of some
one other than the plaintiff. But the old rule, which has always
been the prevailing, if not the universal, law in America, that
destroyed notes are suable at common law, is re-established.
And it has been doubted whether equity has even a concurrent
jurisdiction over such notes and bills. (a) In Scotland, destroyed
notes can be sued without tender of indemnity. (/>)

A fifth exception was formerly taken in England with respect
to a bill indorsed in blank, and lost after it has become due. As
the finder could not in that case give an effectual right of action
even to an indorsee for value, and without notice, it would
seem that the payor could not insist on indemnity against a future
claim, and that accordingly the owner would have his remedy
at law.(c) But this distinction was set aside, on the ground that
the indorsee even of a note overdue would make out a prima
facie case for recovery by proving the acceptance and indorse-
ment, and that it would be hard to expose the acceptor, after
payment of the bill without any indemnity, to the hazard of his
inability to show by legal evidence that the bill had been lost
after it became due.(o?)

Accordingly, in England, whether the negotiable note be lost
before or after it falls due, or even after presentment and
demand, or after an express promise of the maker to pay, it i?
not suable at law. But some American courts adopt the distinc-
tion putthig the case on the same ground with non-negotiable
and destroyed notes, namely, that the maker is not liable again
on the same note.(e)

(a) Woodford v. Whiteley, Moody & M. 517 (1830) ; Blackie v Pidding, 6 C. B.
196; Wiifrht v. Maidstone, 1 Kay & J. 701. In this last case, the bill of exchange
sued on was destroyed, and the argument was on a demurrer to the bill in equity, on
the ground that there was a complete and adequate remedy at law. The demurrer was
sustained. The Vice-Chancellor took occasion to pronounce the decision in Hansard
V. Robinson, 7 B. & C. 90, a mere dictum, so far as the case of a destroyed bill was
alluded to, and a dictum opposed to law.

(h) Thomson, Bills, 320.

(c) Glover v. Thomp.son, Ryan & M. 403 ; Long v. Bailie, 2 Camp 214, note.

(d) Hansard v. Robinson, 7 B. & C. 90 ; Champion v. Terry, 7 J. B. Moore, 130,
3 Brod. &, B. 29.5; Woodford v. Whiteley, Moody & M. 517 ; Crowe v. Clay, 9 Exch.
604, overruling Clay v. Crowe, 8 Exch. 295. See Price v. Price, 16 M. & W. 232.

(e) Thayer v. King, 15 Ohio, 242 ; Smith i-. Walker, 1 Smedes & M. Ch. 432, 435 ;
Chaudron v. Hunt, 3 Stew. 31. But see Rowley v. Ball, 3 Cowen, 303, 312.



29G NOTES AND BILLS. [cH. IX.

It has also been stated, that, if a negotiable note put into cir-
culation is lost before coming due, it must be shown that it was
not indorsed ; but this is not necessary in a note lost after falling
due, since the equities would bar all future attempts to recover
on it.(/) Finally, where the debt will be barred l)y tiie Statute
of Limitations from any future claim, an action on the lost note
may be had at law.(^'-)

Concerning the appropriate remedy on a note or bill nego-
tiable by delivery, which is mislaid or lost, and not proved to be
destroyed, there has been much conflict of opinion. But iu
England it is clearly settled — and, indeed, there were never
any autiioritative cases at law to the contrary (A) — that a lost
bill or note payable to bearer cannot be sued at law.(i) And
this is now equally true, whether the note be payable to bearer
or order, and even though the loss occurred after it fell due.



(/) Sloo V. Roberts, 7 Ind. 128.

((7) Toney v. Foss, 40 Maine, 74 ; Moore v. Fall, 42 id. 450. The action at law is
permitted in Maine whenever the defendant " is not exposed to danger from the claim
of an actual holder, other than the plaintiff." Ihid.

{fi) The ca.ses relied on by counsel in Hansard v. Robinson, 7 B. & C. 90, in oppo-
sition to the rule, were Hart v. King, 12 Mod. 310; Glover v. Thompson, Ryan & M.
403 ; Brown v. Messiter, 3 Maule & S. 281. But of these, as it was proved the first
does not show that the bill was negotiable ; the second was undefended ; sec id. 404,
note ; and in the third, the rule was made absolute by a single judge. But there wa.s
no relief formerly at equity on lost notes, on the ground that the loser had a com-
plete remedy at law. Walmsley v. (^liild, 1 Ves. Sr. 341 ; Mossop v Kadon, 16 Ves.
Jr. 430 : Glynn v. Bank of England, 2 Ves. Sr. 38. In this last case, Lord Hard-
wicke said : " A man is not entitled to bring a bill in equity, in general, for a satisfac-
tion upon a note lost For, if lost, he may recover at law thereon. 'J'herc may be

circumstances, indeed, in which he may be entitled to come into equity in a case of
this kind ; but this is, in general, barely on the loss of a note." But this o]iii)ion has
been ovcnuled. See note «.

(/) Hansard v. Robinson, 7 B & C. 90, 9 Dowl. & R. 860; Picrson v. Hutchinson, 2
Camp. 21 1, 6 Esp. 126 ; Powell c. Roach, id. 76 ; Poole v. Smith, Holt, N. P. 144 ; Dan-
gerfield v. Wilby, 4 Esp. 159; Mayor v. Johnson, 3 Camp. 324 ; Ex parte Greenway,
6 Ves. Jr. 812 ; Davis v. Dodd, 4 Taunt. 602, Wils. Exch. 110 ; Champion v. Terry, 3
Brod.& B. 295, 7 J. B. Moore, 1.30; Wain v. Bailey, 10 A. & E. 616, 2 Per. & 1). 507 ;
Leigh's N. P. 471 ; Clay v Crowe, 8 Exch. 294 ; Crowe r. Clay, 9 id. 604 ; Ramuz i-.
Crowe, 1 id. 167 ; Price v. Price, 16 M. & W. 232 ; Rolt v. Watson, 12 J. B. Moore, 510,
4 Bing. 273 ; Long v. Bailie, 2 Camp. 214 ; Woodford ». Whiteley, Moody & M 517 ;
Blackie v. Pidding, 6 C. B. 196; Wright v. Maidstone, 1 Kay & J. 701 ; Macartney
V. Graham, 2 Sim. 285. In Scotland, the amount need not be paid, unless the loss be
eetablishcd before a judge, and indemnity secured. But a lost bill is recoverable on
such terms in Scotland, and the stricter English rule is not followed. Glen, Bills, 171 ;
Forbes, 156.



CH. IX.] RIGHTS AND LIABILITIES OF FINDER. 207

and even though indemnity be offered at law. The ground is,
that the party defendant can rightfully insist upon profert of
the bill or note in suit ; and that the party suing should be
the actual holder ; and furthermore, that while in equity the
plaintiff could be required to furnish suitable indemnity to the
defendant against being called upon to pay the lost note to any
future bona fide holder for value, — a provision of vital impor-
tance to conducting the suit, — the common law had no such
power of compulsion. (y) And equity is everywhere admitted to
have jurisdiction of lost instruments, even in those States where
a concurrent power is invested in law.(A;)

In this country, courts of equity alone can furnish relief upon
negotiable notes and bills lost before maturity, in most of the
States in which law and equity are accurately distinguished, and
where a court exists having full equity powers. (/) But other

(j) Ex parte Grecnway, 6 Ves. Jr. 812. The bill of exchange sued on had been
lost after indorsement. Lord Eldon said : " To enable you to prove in respect of this

bill, there must be a most extensive indemnity, a complete indemnity, going to

all the consequences, against the holder, if the bill has not been paid, and that may

be made by future possible holders if it should have been paid But I never

could understand by what authority courts of law compelled parties to take the
indemnity."

(k) Ex parte Greenway, 6 Ves. Jr 812 ; Walmsley v. Child, 1 Ves. Sr. .341 ; G'ynn i"-.
Bank of England, 2 id. 38 ; Mossop v. Eadon, 16 Ves. 433 ; Cockell v. Bridgeman, 4
Beav. 499 ; Davis v. Dodd, 4 Taunt. 602, 4 Price, 176, Wils. Exch 110; Tercese p.
Geray, Finch, 301 ; West ». Patton, Litt. Sel. Gas. 40.5 ; Smith » Walker, 1 Smedeg
& M. Oh. 432 ; Smitherman v. Kidd, 1 Ired. Eq. 86 ; Fisher v. Carroll, 6 id. 485,
1 Jones, 27 ; Irwin v. Planters' Bank, 1 Humph. 145 ; Fisher v- Mershon, 3 Bibb,
527 ; Chcwuing v. Singleton, 2 Hill, Cb. 371 ; Crawford v. Summers, 3 J.J. Marsh.
300; Stout V. Ashton, 5 T. B. Mon. 251 ; Jackson v. Jackson, 6 Dana, 257 ; Allen p.
State Bank of N. C, 1 Dev. & B. Eq. 3 ; Dumas v. Powell, 2 id. 122 ; Farmers' Bank
of Va. V. Reynolds, 4 Rand. 186; Hank of Va. v. Ward, G Munf. 166; Wardlaw v.
Gray, Dudley, Eq. 85. In Davis v. Dodd it was held, that the indorsee of a lost bill of
exchange may compel payment of the acceptor in equity ; although he might have re-
covered at law. And it is no answer to the suit that the bill of exchange was merely
an accommodation bill ; that the plaintiff might have applied before ; or that the
drawer has since become insolvent. And the plaintiff is not bound to institute the suit
in equity within any particular- period. See also Pearce v. Creswick, 2 Hare, 286.
Green v. Stone, Walk. Ch. 109 ; Slory, Eq. Jur. ^§ 82, 83 ; 2 Rob. Prac. 40; Jeremy,
Ch. Jur. 362. To give the Court of Chancery jurisdiction, it is not necessary that
the note shall have been lost before maturity. Green v. Stone, Walk. Ch. 109 ; Chew-
ning i». Singleton, 2 Hill, Ch 371.

(/) Rowley v. Ball, 3 Cowen, 303 ; Kirhy v. Si.s.son, 2 Wend. 5.50 ; Hinsdale v. Bank
of Orange, 6 id 378 ; Thayer v. King, 15 Ohio, 242 ; Cotton v. Beasly, 2 Murph. 259;
Swift ». Stevens, 8 Conn. 431 ; Fitch v. Bogue, 19 id. 2S5 ; Branch Bank at Mobile v.
Tillman, 12 Ala. 214 ; Chaudron c. Hunt, 3 Stew. 31 ; Posey v. Decatur Bank, 12 Ala.



298 NOTES AND BILLS. [CH. IX.

States give relief at law, and fiinl no difficulty in requiring the
defendant to tender suitable indenniity in such a suit.(///)

Undoubtedly in England, and in such States as strictly adhere
to the English distinctions of remedies, indemnity cannot be
offered at law. But it may be questioned whether it is advisable
for those States in this country to refuse the remedy at law on
lost negotiaI)le notes, in which the exclusive powers of e(]uity are
not so precisely insisted upon as in England. One of the rea-
sons for refusing the remedy at law, to wit, the necessity of pro-
fert, and of tlie j)laintiir's being the actual holder, is, as we have
already said, merely technical and unimportant, when a good
excuse for the want of it can be furnished. As to the second
reason, the matter of indemnity, although one distinguished



802; Edwards v. M'Kee, 1 Misso. 123; Smith v. Rockwell, 2 Hill, 482; Ahomw.
Bos worth, 1 R. I. 401 ; and the American cases cited in note Ic, supra. In North Car-
olina, it seems that an action at law will be allowed, if the ])laintiff can prove a loss
by evidence of third parties. But if he rely on his own oath or affidavit, ho must go
to equity, as the indemnity which equity can give and law cannot is thouf^ht to bal-
ance the insecurity of allowing a plaintiff to prove his own case. Fisher v. Carroll,
6 Led. Eq. 485, 1 Jones, 27 ; McRae v. Morrison, 13 Ired. 46 ; Allen v. State Bank,
I Dev. & B. Eq. 3 ; Dumas v. Powell, 2 id. 122 ; Chaney v. Baldwin, 1 Jones, 78 ;
Grant v. Reid, id. 512.

(in) Menendcz v. Syndics of Larionda, 3 Mart. La 236 ; Nagel v. Miy:not, 7 id. 657 ;
Id., 8 id. 488 ; Latapic v. Gravier, id 316 ; Brent r. Ervin, 15 id. 303 ; Lewis v. Petay-
vin, 16 id. 4 ; Wade v. N. 0. Canal, &c. Co., 8 Rob. La. 140 ; Northern Bank of Ky.
V. Leverich, id. 207 ; Miller v. Webb, 8 La 516 ; Lewis ?;. Splane, 2 La. Ann. 754 ;
Peace v. Head, 12 id 582 ; Bean v. Keen, 7 Blackf 152 ; Donnady v. State Bank of
111., 2 Scam. 236 ; Welton v. Adams, 4 Calif 37 ; Price v. Dunhip, 5 id. 483 ; Meeker
r. Jackson, 3 Yeates, 442 ; Bell v. Youny, 1 Grant's Cas. 175 ; Waters v. Bank of
State of Georgia, &c., R. M. Charlt. 193 ; Robinson v. Bank of Darien, 18 Ga. 6.5,
111; Bowman v. Smith, 1 Strob. 246; Commercial Bank v. Benedict, 18 B Mon.
307 ; Union Bank v. Warren, 4 Sneed, 167 ; Anderson v. Robson. 1 Brev. 263 ; Pea-
body V. Penton, 2 Gallis 351 ; Freeman ». Boynton, 7 Mass 483; Jones v. Fales, 5
id. 101 ; Welsh v. Bairett, 15 id. 380, 384 ; Donelson v. Taylor, 8 Pick. 390 ; Page v.
Page, 15 id. 368; Falos v. Russell, 16 id. 315 ; Foster v. Mackay, 7 Met 531 ; Almy
V. Reed, 10 Cush. 421 ; Willis v. Cresey, 17 Maine, 9 ; Vanauken v. Hornbcck, 2 Green,
N. J. 178 ; Bank of U. S. i;. Sill, 5 Conn. 106 ; Hinsdale v. Miles, id. 331 ; Murray v.
Carret, 3 Call. 373 ; Fulton Bank v. Phoenix Bank, 1 Hall, 562 ; Viles v Moulton, 11
Vt. 470 ; Reynolds v. French, 8 id. 85 ; Leavitt v. Cowles, 2 McLean, 491 ; Uenner v.
Bank of Columbia, 9 Wheat. 581 ; Bisbing v. Graham, 14 Penn. State, 14; Page v.
Page, 15 Pick. 368; Jackson v. Frier, 16 Johns. 193 ; Chamberlain » Gorham, 20 id.
144; Church v. Flowers, 2 Root, 144; Hinsdale v. Bank of Orange, 6 Wend. 378;"^
Bullet V. Bank of Penn., 2 Wash. C. C 172 ; Martin v. Bank of U. S . 4 id. 253. " It
has been repeatedly held in this court, that the act of 1828, giving the courts of com-
mon law jurisdiction of lost notes, is merely an affirmance of the common law." Bell
V. Moore, 9 Ala. 823 ; Chaudron v. Hunt, 3 Stew. 31 ; Porter v. Nash, 1 Ala 452 ;



• ;H. IX.] RIGHTS AND LIABILITIES OF FINDER. 299

authority has said, " Whether an indemnity be sufficient or in-
sufficient, is a question of whicli a court of law cannot judge " ; («)
and aiiotlier, " I never could understand by what authority courts
of law compelled pi^'ties to take the indemnity " ; (o) we have
seen that some American courts have found no difficulty in ad-
justing the hidemnity satisfactorily in suits at law.(/?)

A further consideration, which may have some weight, is, that
if courts of law refuse the remedy, the owner of a lost note will
very often get none at all. For some courts of chancery refuse
to take jurisdiction of civil actions in which the sum recov-
erable does not exceed a specific amount, — a frequent mini-
mum standard, where such a rule exists in America, being
fifty dollars. It is obvious that a great number of lost notes
are of much smaller value than this sum, and accordingly the
owner of such a bill, if refused his remedy at law, would get
none at all. ((7)

A fourth remark is, that in England and most of those
States in whicli the courts supported the exclusive remedy in



Robinson r. Curry, 6 id. 842 ; Snodgrass v. Branch Bank, 25 id. 161. To these may
be added the cases at law of notes lost after being once given in evidence, vifrn, p. 309,
note p. But some of these cases, it is thought, may have been decided on the ground
that " the loss was by the officers of the court, while the document was in the custody
of the law" 2 Greenl. Ev. ^ 156, note.

(n) Lord Ellenborough, in Pierson v. Hutchinson, 2 Camp. 211.

(o) Lord Eklon, in Ex parte Green way, 6 Ves. Jr. 812.

(p) Supra, note m. In Tales v. Russell, 16 Pick. 315, a negotiable note, indorsed in
blank, was stolen from the holder before it was due. There was no evidence of de-
struction whatever. The court held, first, that the owner might, nevertheless, recover
the amount from the maker, at common law, on indemnity ; secondly, that " this court,
as a court of law, has authority, in such case, to prescribe a reasonable security for
Che defendant's indemnification." In Union Bank v. Warren, 4 Sneed, 167, 171, the
court said : " We likewise assent to the proposition maintained in Fales v. Russell,
that, in the case of a lost bill or note, it is properly witliin the power of a court of law,
on rendering judgment for the plaintiff, to annex the condition that, before availing
himself of it, he shall execute to defendant a sufficient bond of indemnity. Such is the
requirement of the act of 1819. But the authority of a statute is not necessary to the

exercise of this power by a court of law But the jurisdiction at law cannot be

seriously questioned."

iq) Thus, in Chancy v. Baldwin, 1 Jones, N. Car. 78, the plaintiff lost a note for
$ 47.00, and offered to prove the loss by his own oath, and to swear he had no other
means of proving it. He admitted that the technical remedy was in equity, but pleaded
the rule of the latter court not to give relief on an amount of less than $ 50.00. But
the court said, " It is a new idea, that courts of law take jurisdiction, because the plain-
tiff is 'without remedy, save in this honorable court,'" — and the plaintiff got no
remedy from either court. See also Union Bank i;. Warren, 4 Sneed, 167.



300 NOTES AND BILLS. [CH. IX.

equity, a complete remedy at law is established by statute on
lost negotiable bills and notes, and the law courts are found able
to judge wliethor the indemnity is sufficient. This statute rem-
edy is, in England, the 17 & 18 Vict. c. ^25, § 87, which jtro-
vidcs that " in case of any action founded upon a bill of exchange
or other negotiable instrument, it shall be lawful for the court or
a judge to order that the loss of such instrument shall not be
set up, provided an indemnity is given to the satisfaction of the
court, or judge, or a master, against the claims of any other
person upon such negotiable instrument." It is only upon the
application of a plaintifif, to prevent a defendant from setting
up the loss of the bill, that a judge has any jurisdiction under
the 87th section of this statute. (/•)

Similar provisions have been enacted in New York,(s) and in



(r) Aranguren v. Scholfield, 1 H. & N. 494, 38 Eng. L. & Eq. 424. Hence, where
the defendant alleges the loss, and undertakes to pay the debt and costs, on indemnity,
the judge has no power to order at once a stay of proceedings till it be given ; for that
would be preventing the plaintiff from trying the question of loss. Id.

(s) The New York statute is : " In any suit founded upon any negotiable promis-
sory note or bill of exchange, or in which such note, if produced, might be allowed ob
a set-off in the defence of any suit, if it appear on the trial that such note or bill was
lost while it belonged to the party claiming the amount due thereon, parol or other
evidence of the contents thereof may be given on such trial, and, notwithstanding such
note or bill was negotiable, such party shall be entitled to recover the amount du«
thereon, as if such note or bill had been produced. But to entitle a party to such
recovery, he shall execute a bond to the adverse party, in a penalty at least double the
amount of such note or bill, with two sureties, to be approved by the court in whicJi
the trial shall be had, conditioned to indemnify the adverse party, his heirs, and per-
sonal representatives, against all claims by any other person on account of such note
or bill, and against all costs and expenses by reason of such claim " 2 K. S., Part III.
Ch. VII. tit. 3, art. 8, §§ 94, 95, 96, 3d ed. This statute applies only to the remedy,
and in no way affects the rights or liabilities of the parties arising out of the proceed-
ings to charge the drawer or indorser. Any defences on this latter ground are still a<>
available under the statute remedy as under the former equitable remedy. Edward*;,
Bills, 296 ; Smith v. Rockwell, 2 Hill, 482. A check is a bill of exchange within
the meaning of this statute. Jacks v. Darrin, 3 E. D. Smith, 548 ; Jacks r. Dar-
rin, id. 557. The statute applies, although the bill, note, or check be lost after tht
action is commenced. Id. But the statute applies only to lost notes. Upon a note
accidentally destroyed, an action may be had without indemnity, " for a destroyed
note cannot be in the hands of a bona fide holder." Des Arts v. Leggett, 16 N. Y. 582,
5 Duer, 156. But under this New York statute, though the loser has his remedy at
law, an assignee after loss must resort to equity, not to the statute. Smith v. Young, 3
Barb. 545. The statute also declares that any drawee who shall destroy a bill, or
refuse, within twenty-four hours after delivery for acceptance, or within such other
period as the holder may allow, to return the bill, accepted or non-accepted, to the
holder, shall be deemed to have accepted the same.



OH. IX.] RIGHTS AND LIABILITIES OF FINDER. 301



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