Moore v. Fall

Appleton, J. This is an action brought by the indorsee upon an indorsed note, which there was proof tending to [455] show had been destroyed by fire since the commencement of the suit. After the evidence for the plaintiff had been introduced, the counsel for the defendant moved a nonsuit, on the ground that an action at law could not be sustained on proof either of the loss or destruction of the note, which motion was overruled. The law is well settled, that a recovery may be had on a lost note which is not negotiable, or which, being negotiable, has not been negotiated, or which, being negotiated, has been specially indorsed to a particular individual, to whom it is exclusively payable. Pintard v. Tackington, 10 Johns. 104; Chitty on Bills, (10th Amer. ed.,) 264. In England, if a note, being negotiable and negotiated, has been lost, the court of equity has jurisdiction to enforce payment of the amount due, upon a sufficient indemnity. In Massachusetts, a court of law prescribes a reasonable security for the defendant’s protection, upon furnishing which the plaintiff is permitted to recover. It seems, too, that the courts of that State will continue the action till the lost note shall have become barred by the statute of limitations. If the note was destroyed, it is well settled that the plaintiff, upon proof thereof, may recover at law. Rowley v. Ball, 3 Cow. 303; Swift v. Stevens, 8 Conn. 431; Viles v. Moulton, 11 Verm. 470. No question was made as to the sufficiency of the proof to show the loss or destruction of the note in suit. The motion for a nonsuit, on the ground that no action could be sustained at law, on proof that the note was destroyed, was properly overruled. In this State, it was determined, in Torrey v. Foss, 40 Maine, 74, that the owner of a lost note may maintain an action at law, without furnishing an indemnity, if it appear that the statute of limitations may be interposed to prevent a recovery by a bona fide holder. The defendant would be now protected by time against a future holder of the note, had it been lost. [456] The motion to dismiss the action, unless the plaintiff tendered a bond of indemnity, was properly denied. The Court had no authority, for any such cause, to dismiss an action properly commenced and legally pending. If the evidence was insufficient to show the existence and destruction of the note in suit, or its loss, the defendant may have been entitled to a verdict in his favor, but not to the dismissal of the action. Exceptions overruled. Tenney, C. J., and Rice and Goodenow, J. J., concurred.