
    *The Bank of Virginia v. Ward.
    Decided, March, 3d, 1818.
    i. Banks — Hutilated Bank Notes — Right of Holder of.— The bona fide owner of a bank note, having trans-mil;ted one half thereof by the mail, ■which has been stolen therefrom, or is lost, can not demand payment from the Bank of any part of it’s amount, Jn consequence of holding- the retained half, merely; but he is entitled to demand the whole ■amount of the said note, on satisfying the Bank of the verity of the aboye facts, or establishing them by the judgment of a Court of Equity, and giving, in either case, a satisfactory indemnity, to -secure the Bank against future loss from the appearance, and settingup, of the other half of such note.
    Upon an appeal from a Decree of the Superior Court of Chancery for the Richmond District.
    The suit was brought by Fishback and Ward merchants and partners carrying on trade at the town of Jefferson in the County of Culpeper, against the President, Directors and Company of the Bank of Virginia, to recover a balance claimed by the plaintiffs, on the ground that, having occasion to make a remittance of money to Thomson and Maris, their correspondents in Philadelphia, they divided, by cutting, four notes on the Bank of Virginia, (the numbers, dates and sums of money being particularly described in the Bill,) inclosed one half of each note in a letter addressed to the said Thomson and Maris, Philadelphia, and, on or before the Sth of January, 1811, put the said letter, with the halves of said notes inclosed, into the Post Office at Jefferson, Culpeper County, to be conveyed with the Mail according to it’s direction; but, as the plaintiffs were informed, the said letter and half notes never reached the said Thomson and Maris, but were lost and destroyed: .ttrnt: the said Notes amounting, in all, to three hundred dollars, of which, three, amounting to two hundred dollars, were payable at the Office of Discount and Deposit of the Bank at Fredericksburg, the plaintiffs (after waiting a reasonable time to see whether the said half notes could be found, and having given notice of the loss, to the President of tne Bank at Richmond, immediately after being informed of it,) applied to the agents of the said Bank at Fred-ericksburg for payment of the said notes, on or about the 4th of March 1811, and offered to give the said President, Directors and Company bond and security to indemnify them against any claim which might thereafter be exhibited against them, on account of said notes; producing, at the same time, the other halves of said notes, which they the plaintiffs retained; whereupon, the said agents refused to pay the said notes, but paid one half of the *'three payable at Fredericksburg; that is, one hundred dollars; and informed the plaintiffs that the balance would be paid, probably, when a sufficient lapse of time had passed to create a strong piesumption that the other halves of the said notes were destroyed, or would never appear; whereupon the plaintiffs delivered up the halves they had retained of the said three notes payable at Fredericksburg; that the plaintiffs applied again to the President and Directors of the Office of Discount and Deposit at Fredericksburg, through a friend and agent, and requested payment of the residue on said notes, and again offered, as before, bond and security of indemnification; when the said President and Directors declined giving any answer, until they could consult the President and Directors at Richmond, who afterwards directed that no farther payment should be made.
    The plaintiffs, therefore, prayed such relief as would be just and equitable; exhibiting, with their Bill, a paper which they alledged was the half of one of the $100 notes, (the only one remaining in their possession,) and repeating their offer to give the Bond of indemnification, with such security as the Court should approve.
    The President and Directors of the Bank filed their answer, under the common seal of their corporation ; requiring the plaintiffs to prove, that they were' proprietors of the notes, and sent the halves of them by mail, as they alledged-insisting, however, that, if such proof should be exhibited, the plaintiffs, by cutting the said notes in twain, and thereby disabling themselves from producing the whole notes, had voluntarily destroyed their own securities, and could not resort to the Bank for payment that, if the Court should be of a different opinion, yet the Bank was not liable to pay the money upon their producing the halves only of the said notes; 1st, because innocent holders of the other halves might with equal propriety demand it likewise ; and the complainants, by the act of cutting the notes in two, may have contributed to bring such innocent holders into difficulties: — 2dly, because it would not be in the power of the Bank to guard against surprise, as it would be “'impossible to identify the correspondent halves; for the dates, numbers and letters of the halves produced will fit the same denominations on any other notes, or halves, of a similar description, as well as those from which the halves produced by the complainants were taken.
    The defendants further answering said, that the pajrments made to the plaintiffs by the office of discount and deposit in Fred-ericksburg, were without the knowledge of these defendants or their predecessors, and therefore did not oblige the Bank to make farther payments; instead of which, the plaintiffs ought to refund the money already received from the said office of discount and deposit.
    The plaintiffs replied generally, and took a deposition tending to prove that, in fact as alledged, they had put into the mail a letter containing the half notes described in the Bill; but no proof was exhibited that the said letter and half notes were stolen or lost, or failed to come to hand as directed. They proved also their offer to indemnify the Bank.
    The defendants filed the affidavit of William Nekervis, (read by consent of parties,) in the following words: — “The half of a note of the Bank of Virginia for one hundred dollars, filed in the Superior Court of Chancery in the suit Fishback &c. against the Bank of Virginia, being shewn to me, for my opinion as to the power of the Bank to discriminate between the right hand half of this note, and the right hand half of other notes of the same description ; I hereby certify that notes of the kind in question are filled with one number only on the left side; that one hundred sheets, or four hundred notes, are of the same date, which date is on the right hand side. By comparing the numbers and dates, it can be ascertained by the Bank Register, whether or not they agree as to a given hundred sheets; but, there being no other mark of discrimination, if notes be cut exactly alike, the half of one note will fit the halves of three hundred and ninety nine other notes, besides it’s real corresponding half.”
    Wm. Nekervis.
    *Chancellor Taylor decreed, that the defendants pay to the plaintiff Ward, (the surviving partner, Fishback being dead,) the sum of two hundred dollars, with interest thereon from the 17th day of September 1811, ’till paid, and the costs: but the effect of this decree was suspended until the plaintiff should enter into bond, with good security, in the penalty of four hundred dollars, with condition to indemnify the defendants against the claim or claims of any persons, who might hereafter claim against them, in consequence of having the possession of the halves of the notes, in the bill mentioned, and which were alledged to be lost or destroyed.
    From this decree the defendants appealed.
    Call for the appellants.
    Green for the appellee.
    
      
       Banks — Mutilated Bank Notes — Rights of Holder of.— Where a hank note is cut in two, and one-half sent by mail ana lost, the holder of tUe remaining hall' has a right to demand payment at the bank, upon presentation of the half in his possession, proving ownership, and giving bond with adequate security for the indemnification oi the bank, Farmer’s Bank v. Reynolds, 4 R,and. 186, 187, 189, citing principal case- as its authority.
      In Virginia, no action can be maintained at law on one-half of a bank note, where the other half has been lost; because the owner can only recover by establishing his title by the judgment of a court of equity, and giving satisfactory indemnity to secure the bank against future loss from the appearance and setting up of the other half of the note. Moses v. Trice, 21 G-ratt. 562, citing the principal case and Parmer’s Bank v. Reynolds, 4 Rand. 186, as indicating this proposition.
      The principal case is also cited in Exchange Bank V. Morrall, 16 W. Va. 551.
      See further, monographic note on “Banks and Banking’’ appended to Bank v. Marshall, 25 Gratt. 878.
    
   JUDGE ROANE

delivered the Court’s opinion, as follows: — The court is of opinion, that the bona fide owner of a bank note, having transmitted one half thereof by the mail, which has been stolen therefrom, or is lost, can not demand payment from the Bank of any part of it’s amount, in consequence of holding the retained half, merely; but that he is entitled to demand the whole amount of the said note, on satisfying the Bank of the verity of the above facts, or establishing them by the judgment of a Court of Equity, and giving, in either case, a satisfactory indemnity, to secure the bank against future loss from the appearance and setting up of the other half of such note. — But the requisite proof does not exist in the case before us; the half notes, on which the bill is founded, not being specifically and satisfactorily identified, as the counterparts of the halves transmitted; for want of which proof, the decree is to be reversed, and the bill dismissed.  