Since profert of a sealed instrument is not now usually required as a condition of the plaintiff's recovery, the loss or destruction of the instrument generally has merely the effect of a loss of primary evidence which may be remedied in an action at law by the use of secondary evidence.93 But the early jurisdiction of courts of equity to repair the loss persists.94 The case of negotiable instruments presented a greater difficulty than that of a bond or conveyance because one who pays a negotiable instrument is entitled to the redelivery of it not simply for use as a voucher but as proof that the instrument has not been transferred to another holder before maturity. A difficulty was felt in giving relief at law in such a case because the defendant should be indemnified against the possibility of being subsequently held liable on the instrument and a judgment at law conditional on the giving of a proper indemnity seemed anomalous. Accordingly the remedy was formerly confined to equity,96 since it can properly make conditional decrees. But

92 See supra, Sec.Sec. 90, n. 38; 302; 322; 619; 750; 1551. As to the limits of the power of a court of law to give this kind of relief, see Kimble v. Mayor, 91 N. J. L. 249, 102 Atl. 037.

93 See infra, Sec. Sec. 1882, 1883, 1916.

94 Toulmin v. Price, 5 Ves. 235, 238; Bromley p. Holland, 7 Ves. 3, 19; Security Sav. A Loan Ass'n. v. Buchanan, 66 Fed. 799, 802, 14 C. C. A. 97, 31 U. 8. App. 244; Bohart v. Chamberlain, 99 Mo. 622, 13 S. W. 85; Reeves v. Morgan, 48 N. J. Eq. 415, 21 Atl.

1040. In the former case the court refused to exercise- its jurisdiction merely to establish written evidence which had been lost.

95 Hansard v. Robinson, 7 B. & C. 90; Price v. Price, 16 M. & W. 232; Crowe v. Clay, 9 Exch. 604; Fells Point Sav. Inst. v. Weedon, 18 Md. 320, 18 Am. Dec. 603; Adams v. Edmunds, 55 Vt. 352; Moses v. Trice, 21 Gratt. 556, 8 Am. Rep. 609; Campbell v. Myers, 72 W. Va. 428, 78 S. E. 648, 48 L. R. A. (N. S.) 648. See also this rule is nearly everywhere obsolete. Generally by statute and in some States without the aid of statutes, an action at law may be maintained on tender of proper indemnity even though' the negotiable instrument was lost before maturity.96

In some cases the risk to a party to a negotiable instrument in paying it, in spite of its loss, is negligible, and in these cases as no indemnity is practically necessary, an action at law is almost universally allowed without regard to the question whether except for these circumstances the remedy should be in equity. This is true where it is clearly proved that the instrument has been destroyed,97 or has come into the defendant's possession after its loss;98 or where the instrument, at the Posey v. Decatur Bank, 12 Ala. 802 (quoting statute permitting action at law if necessary affidavit is first made. See also Bank of Mobile v. Meagher, 33 Ala. 622); Commack v. Conrad, 30 La. Ann. 603; Wofford v. Board Police, 44 Miss. 579, 589; Warder, etc., Co. v. Libby, 104 Mo. App. 140, 145, 78 S. W. 338; Hart-Parr Co. v. Keeth, 62 Wash. 464, 114 Pac. 169, Ann. Cas. 1912 D. 243.

94 First Nat. Bank v. Wilder, 104 Fed. 187, 43 C. C. A. 461; Stone v. Gray, 10 Cal. App. 609,103 Pac. 155; Bridgeford v. Masonville Mfg. Co., 34 Conn. 546, 91 Am. Dec. 744; Robinson v. Bank of Darien, 18 Ga. 110; Continental Fertilizer Co. v. Pass, 7 Ga. App. 721, 67 S. E. 1052; Bean v. Keen, 7 Black, 152; Commercial Bank v. Benedict, 18 B. Mon. 307; Hill v. Grizzard, 133 Ky. 816, 119 S. W. 168; Foster's Adm'r v. Metcalfe, 144 Ky. 385, 138 S. W. 314; Willis v. Creasey, 17 Me. 9; Page v. Page, 15 Pick. 368; Fales v. Russell, 16 Pick. 315; Hinckley v. Union Pacific R. Co., 129 Mass. 52,37 Am. Rep. 297; Munroe v. Weir, 177 Mass. 301, 58 N. . 1013 (but in Savannah Nat. Bank v. Haskins, 101 Mass. 370, 3 Am. Rep. 373, it was held that the remedy against the indorser of lost negotiable paper must be in equity); First Nat. Bank v. McConnell, 103 Minn. 340, 114 N. W. 1129, 14 L. R. A. (N. S.) 616, 123 Am. St. Rep. 336; Warder, etc., Co. v. Libby, 104 Mo. App. 140, 78 S. W. 338; Leighty v. Murr, 194 Mo. App. 156, 186 S. W. 734; Moore v. Durnan, 69 N. J. Eq. 828, 65 Atl. 463, 116 Am. St. Rep. 635; Mills v. Albany Exch. Nat. Bank, 28 N. Y. Misc. 251, 253, 59 N. Y. S. 149; Fisher v. Webb, 84 N. C. 44; Thayer v. King, 15 Ohio, 242, 45 Am. Dec. 571; Synder v. Woifley, 8 S. & R. 328; Smith v. Nelson, 83 S. C. 294, 65 S. E. 261, 24 L. R. A. (N. S.) 644, 137 Am. St. Rep. 808.

97 Wright v. Maidstone, 1 Kay & J. 701; Blackie v. Pidding, 6 C. B. 196; Pierson v. Hutchinson, 2 Campb. 211; Branch Bank v. Tillman, 12 Ala. 214; Filby v. Turner, 9 Colo. App. 202, 47 Pac. 1037; Moore v. Fall, 42 Me. 450, 66 Am. Dec. 297; Wofford v. Board of Police, 44 Miss. 579, 589; Hinsdale v. Bank of Orange, 6 Wend. 378; Rowley v. Ball, 3 Cow. 303, 15 Am. Dec. 266; Dee Arts v. Leggett, 16 N. Y. 582; Thayer v. King, 15 Ohio, 242, 45 Am. Dec. 571; Aborn v. Bosworth, 1 R. I. 401; Hough v. Barton, 20 Vt. 455; Moses v. Trice, 21 Gratt. 566, 8 Am. Rep. 609.

96 Smith v. McClure, 5 East, 476; De la Chaumette v. Bank of England, 9 B. & C. 208; Decker v. Mathews, 12 time of its loss, was not negotiable merely by delivery;99 or where at the time of the trial the Statute of Limitations would be a bar if a new action were brought upon the instrument.1 Sometimes the fact that an instrument was overdue when lost and would, therefore, if negotiated, pass subject to defences, has been held to justify the same procedure.2

N. Y. 313; Buck v. Kent, 3 Vt. 99, 21 Am. Deo. 576.

99 Branch Bank v. Tillman, 12 Ala. 214; O'Neil v. O'Neil, 123 111. 361, 14 N. E. 844; Petrue v. Wakem, 90 111. App. 463; Dean v. Speakman, 7 Blackf. 317; Cleveland v. Worrell, 13 Ind. 545; Moore v. Fall, 42 Me. 450,66 Am. Dec. 297; Hill v. Barney, 18 N. H. 607; Rowley v. Ball, 3 Cow. 303, 15 Am.. Dec 266; Citizens' Nat. Bank v. Brown, 45 Ohio St. 39, 11 N. E. 799, 4 Am. St. Hep, 526; Lasell v. Lasell, 12 Vt. 443, 36 Am. Dec. 352; Hough v. Barton, 20 Vt. 455; Clark v. Snow, 60 Vt. 205,14 Atl. 87,6 Am. St. Rep. 108. But see Holt v. Watson, 4 Bing. 273; Butler v. Joyce, 20 D. C. 191.

1 Moore v. Fall, 42 Me. 450, 66 Am. Dec 297; Fales v. Russell, 16 Pick.

315; Adams v. Baker, 16 R. I. 1, 11 Atl. 168, 27 Am. St. Rep. 721; Moses p. Trice, 21 Gratt. 556, 8 Am. Rep. 609. And the court may order a case continued until the note becomes barred by the Statute of Limitations in order to give protection to the defendant and justify recovery by the plaintiff. Matthews v. Matthews, 97 Me. 40, 53 Atl. 831, 94 Am. St. Rep. 464.

2 Sloo v. Roberts, 7 Ind. 128; Elliott v. Woodward, 18 Ind. 183; Palmer v. Carpenter, 53 Neb. 394, 73 N. W. 690; Thayer v. King, 15 Ohio, 242, 45 Am. Dec. 571. But see Butler v. Joyce, 9 Mackey, 161,16 L. R.A.205; Rowley v. Ball, 3 Cow. 303, 15 Am. Dec. 266; Moses v. Trice, 21 Gratt. 556, 8 Am. Rep. 609.