
    Snyder for the use of Etter against Wolfley and another surviving obligors of Hipple and Gish.
    Where evideuce has been given from which infer thatT*5" Imdheeniic*1 tualiy in his 5Sfe competent ■witness to prove its loss,
    again sube1"” managers of a mu ^thele" amount of a fesTion of of the defendanls, that the plaintiff was the ticket,' is' evidence.
    An action cannot be maintained, to recover the prize drawn to a lottery ticket which has been lost, ■without previously giving* or tendering an indemnity against future claimsfounded upon it.
    In ERROR.
    The record of this cause being returned from the Common Pleas of Lancaster county, it appeared to be an action of J . 11 debt, brought in the name of Simon Snyder, esq. Governor of the Commonwealth of Pennsylvania, successor of Thomas M'-Kean, Esq. for the use of Jacob Etter against John Wolfley and John Shortle, surviving obligors of Frederick Hippie, and Abraham Gish, to recover the amount of a prize drawn by Etter, in the Elizabethtown Church Lottery, of which / . ' /■» the defendants were managers, opposite to ticket, No* 4036, which was averred in the declaration to have been lost.
    On the trial, a book was produced, which Jacob Shaeffer swore he had received, with some others, from John Wolfley, out, and that he had given it to Abraham Etter, to sen tickets out of. On the death of Abraham Etter, this . ’ book was returned by his son to the witness. Susanna Etter proved, that Jacob Etter bought four tickets in the lottery Gf bis father Abraham Etter, about two years before it was ' J drawn*
    The counsel for the plaintiff, then offered the plaintiff himself to prove, that in the year, 1809, his pocket book was stolen from him in or near Harrisburg; that he pursued the thief about twenty miles, apprehended him, and recovered the pocket book, but, that on examining it, a ticket in the Elizabethtown Church Lottery, which was in it when it was stolen, was missing, and that he had never been able to find it since. This evidence, being objected to by the defendant’s counsel, was rejected by the Court. After having proved, that some of the entries in the margin of the book from which the tickets were cut, were in the hand writing of Abraham Etter, the evidence of the plaintiff to prove the loss of the ticket, was again offered and rejected; upon which the Court sealed a bill of exceptions.
    
      The counsel for the plaintiff afterwards proposed to prove, that John Wolfiey had admitted that Jacob Etter was the owner of the ticket which drew the prize for which the present action was brought, and that he had no other objection to paying it, than that the ticket was not produced. The Court overruled this evidence also, and sealed a second bill of exceptions.
    The Court, having been requested by the counsel for the plaintiff to instruct the jury that the ticket on which this suit is brought, being lost, it is not necessary that the plaintiff should aver in his declaration, or prove on the trial, that he had offered to indemnify the defendants against any claim which might in future be founded upon it, gave in charge, that to entitle the plaintiff to recover, it was necessary to prove the purchase of the ticket and the loss of it, and, that if he proved the loss, he would not be entitled to recover, unless he shewed that he had offered to the defendants an indemnity against any future claimant, of the competency of which, the jury were the judges; that in this case, there was no proof of the loss, and that their verdict should be in favour of the defendants.
    The jury found a verdict in conformity with the charge.
    On the argument in this Court, Wright, for the plaintiff in error,
    to shew the competency of the plaintiff to prove the loss of the ticket, cited Douglass’s Lessee v. Sanderson, 2 Dall. 116. Meeker v. Jackson, 3 Yeates, 442.
    That there was error in refusing evidence of the admission of one of the defendants, that the plaintiff was the owner of the ticket which had drawn the prize, was too plain, he said, to admit of argument.
    He contended lastly, that it was not necessary, to entitle the plaintiff to recover, that he should give an indemnity against future claims, because no other holder of the ticket could recover. The Act of Assembly authorising the lottery, provides, that unless prizes are demanded within one year from the time when the drawing is finished, they shall sink into the fund, for the benefit of the church. The defendants are therefore fully protected by the lapse of time. In Meeker v. Jackson, 3 Yeates, 442, the plaintiff recovered on a lost bill of exchange, though he had not offered an indemnity previous to the suit.
    
      J' and Buchanan, for the defendants in error,
    answered, that as there was no proof that the plaintiff was ever in possession of the ticket, the Court could not permit him to prove its loss.
    With respect to the evidence offered of the admission of one of the defendants, that the plaintiff owned the ticket, it was remarked, that as just before it was offered, the plaintiff had amended his declaration by inserting that the ticket was lost, which made it necessary to prove a previous offer of indemnity to entitle him to recover, to have heard any other evidence, would have been mere waste of time.
    The prize being payable to the bearer of the ticket, they argued, that no action could be maintained to recover it, without proving that the ticket had been destroyed. Where a bill of exchange has been destroyed, there may be a recovery at law, but, if it has been lost, the plaintiff cannot recover at law, though an indemnity be offered, but must resort to equity. 2 Campbell, 211. To shew that the plaintiff could not recover, without having offered an indemnity, 1 Burr. 459. 1 Taunt. 523. 4 Taunt. 603. 1 Vin. 341. 5 Vez.jun. 339. 6 Vez. jun. 812, were also cited.
   The opinion of the Court was delivered by

Gibson J.

The plaintiff would not be a competent witness to prove the loss of the ticket, without having shewn by other evidence, that it had actually been in his possession; but that might, I think, be fairly inferred from evidence of his having purchased it, because in the usual course of such transactions, the ticket goes directly into the hands of the purchaser; and the proper course therefore would have been to admit the evidence of the loss, directing the jury to disregard it, unless they were satisfied by evidence, aliunde, that actual possession of the ticket had been obtained. I think there was evidence of the purchase, to go the jury. Susan-nah Etter proved, that the plaintiff had purchased four tickets in this lottery, about two years before the drawing; and this, with the evidence of Jacob Shaejfer, who proved, that the entries (or at least some of them) in the margin of the book from which the tickets were cut, were in the handwriting of Abraham Etter, who, at the time of his death, was acting as an agent for the managers, might have satisfied the jury of the fact of the purchase ; and from that, a satisfactory inference would have arisen, that the tickets had gone immediately into the plaintiff’s hands.

I am at a loss to discover any thing like a reason for rejecting the admission of Woljley, (one of the defendants) that the plaintiff was the owner of the ticket on which the suit is brought.

The charge, however, was right. There never was a time, when a recovery might not be had in a Court of common law, on an unsealed security which was proved to be destroyed. The case of a bond did not depend on the difference between loss and destruction, but on the necessity that once existed, of making a profert of the instrument, to enable the defendant to have oyer of it; and as this could not be done at law, where the bond was either lost or destroyed, the Chancellor was forced to assume jurisdiction, to prevent an absolute failure of justice, and the exercise of this equitable jurisdiction is still continued, notwithstanding the removal of the cause which gave rise to it, by the common law Courts allowing the loss or destruction to be pleaded as an available excuse for the want of the profert. But in the case of a note, bill, check, or other simple contract security, oyer cannot be demanded, and you may therefore recover by proving the contents. With respect to a negotiable security, however, which passes by mere delivery, and which is not destroyed but lost, the remedy is always in Chancery, on terms of giving security against the defendant’s eventual liability; “ because,” as Lord Hardwicke observes, in Walmsley v. Child, 1 Ves. 345, (where the law on the subject is fully and fairly stated,) “ in an action at law, the plaintiff might offer, but a defendant could not be compelled to take; but, in equity, that would be a* consideration, whether they, (the terms) are reasonable.” Now in the case before us, the fruits of the ticket were payable to the bearer ; and the defendants could not resist pa) ment of it in the hands of a bona fide holder for valuable consideration, even though it should originally have been stolen. It was therefore within the reason of the rule requiring security; and this is not denied. But it is contended, on the authority of Meeker v. Jackson, 3 Yeates, 442, that the security need not be tendered before suit brought. That case appears, from the report, to have been decided without argument as to this point; and at a time, when the reconciling of common law forms to chancery principles (which we are unfortunately sometimes obliged to attempt) was, perhaps, not perfectly well understood. Where the plaintiff has a title to recover at law, and the defendant has an equitable claim which ought to be first satisfied, it has been held, that a tender at the time of the trial is sufficient; or perhaps the jury might find a conditional verdict: but Where the,action is in the place of a bill in chancery, and the plaintiff’s title is incomplete in equity, the rule is different. By the express terms of the ticket, whatever prize should be drawn opposite to its number, was to be payable only to the bearer; which, by necessary implication, would require the production of the ticket itself j or as,an equivalent, in case of its loss, security against damage from payment being made without having it delivered up. Tender of indemnity, therefore, was a substantial part of the plaintiff’s title, and no right of action would accrue, till it were made; the sufficiency of the security, being a matter to be judged of at the trial. A chancellor, having a discretionary power over the costs, even so far as to fix them on the successful, party, may dispense with a tender before bill filed, because complete justice may be done by prescribing it at any time, as the terms of relief: but in a Court proceeding to administer equity according to the forms of the common law, costs being an incident of every judgment, with respect to which the Statute of Gloucester has not been restrained by subsequent enactment, a plaintiff suing without a previous tender, presents the ordinary case of a suit brought before the cause of action is complete. The result of the whole is this: a complete title either at law or in equity, is, in our Courts, sufficient ground for the inception of a suit; but with any thing less than a title at the,time of bringing suit, the plaintiff must fail.

Judgment reversed, and a venire facias de now. awarded.  