
    JACKS a. DARRIN.
    
      New York Common Pleas;
    
      General Term,
    
    December, 1854.
    Lost Check.—Recovery may be had oh Ihdemhity.
    A check is a bill of exchange, within the statute, authorizing a recovery upon a lost bill of exchange when the bond of indemnity required by the statute is tendered to the defendant upon the trial and paroi proof thereof of the contents of the instrument given.
    The dictum in 3 Cowen’s Treatise, 184, 3d ed., that if a bill of exchange is lost after action brought, no recovery can be had upon it, shown to be erroneous.
    Appeal from a judgment of the Marine Court.
    This action was brought against the defendant, as maker of' a check. At the joining of issue the check was produced, but-it was lost before the cause was brought on for trial. On the trial, before Phillips, J., January 31, 1854, the check appearing to be lost, the plaintiff offered a bond of indemnity, pursuant to statute. Objection being made, the justice refused, the-bond.
    The plaintiff then requested leave to put in a supplemental or amended complaint, and to be allowed to prove the contents of the lost instrument by paroi. Also refused, and. complaint dismissed. Plaintiff appealed.
    
      W. R. Strafford, for appellant.
    
      Yam Antwerp and James, for respondent.
   Daly, J.

A check, is a bill of exchange, within the meaning of the statute, authorizing a recovery upon a negotiable bill of exchange which has been lost, upon giving paroi evidence of its contents, and tendering to the defendant at the 'trial the bond of indemnity provided for by the statute. (Boehm v. Sterling, 7 Johns. R., 419. 426; Cruger v. Armstrong, 3 Johns. Cas., 5. 7, 8; Merchants’ Bank v. Spicer, 6 Wend., 443; Murray v. Judah, 6 Cow., 484; Harker v. Anderson, 21 Wend., 172).

Ho amendment of the complaint in the case was necessary. The plaintiff was entitled to recover upon tendering the bond of indemnity, and proving by paroi, the contents of the instrument. He proposed that the case should proceed, and that if it was found that he was entitled to recover, that he should file the necessary bond. This might be allowed when it appeared that the plaintiff had not discovered the loss of the check until the calling of the cause, though in fact I see no objection to allowing him to file the bond at any time before the cause is submitted for decision, except the loss of the time of the court if he should not then be prepared to tender it. The justice, however, appears to have held, that as the check was lost between the day of the commencement of the action and the day of trial, the statute did not apply to such a case. This was clearly erroneous. The dictum in 2 Cowen’s Treatise, 184, 2d ed., is founded upon Poole v. Smith, a nisiprius case, in Holt N. P., 144; but that case was simply in affirmance of the English doctrine, that an action could not be main.tained in a court of law upon a lost negotiable instrument, the remedy being in equity where a bond of indemnity might be •required for the defendant’s security, there being no means by which courts of law could provide for this security; a doctrine .affirmed by this State, in Rowley v. Ball, 3 Cow., 303, and which led to the enactment of the statute in question. The ruling in the case in Holt, was not upon the special ground that the action could not be maintained because the note had been lost after suit brought, but that fact was relied on by the plaintiff as excepting it from the general rule, as the plaintiff had a right of action when the action was brought, it being in proof that the check had been shown to the defendant after the commencement of the suit and he had admitted it to be-his, with the additional fact that the check at the time of trial was barred by the statute of limitations, and could not be recovered against the defendant by any third party who might get possession of it; nor is any such distinction to be found in the statute. "Under the ruling of the court below, therefore, it would not have availed if the plaintiff had been ready with and tendered a bond, and I think, therefore, that, the judgment should be reversed.  