This section is from the book "Popular Law Library Vol7 Equity Jurisprudence, Trusts, Equity Pleading", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
One of the most important class of accidents against which equity will grant relief is found in the case of lost instruments. Relief in such cases can in some instances now be obtained at law, but the relief in equity is older and more complete.
1 Equity Jurisprdence, Sec. 79.
Equitable relief of this character extends both to the case of deeds,2 and to unsealed instruments, as bills and notes.3
This species of accident is thus discussed by the court in the case of City of Bloomington vs. Smith:4
"It is an old and familar rule that although the holder of a bill payable to bearer could not recover in a court of law without showing the presentation of the identical paper, a court of chancery, upon proof that the bill had been lost or stolen, would often order it paid upon equitable terms. Thus it is said by a learned author: 'A court of equity, however, may, where the bill is asserted to be lost, give relief to the holder; but then it is always upon the terms that he shows satisfactory proofs to establish the loss, and gives good security for the repayment of the money, if the acceptor shall be compelled to pay again the same to another holder.' Story, Bills, Sec. 445-447; Depew vs. Wheelan, 6 Blackf., 485. The rule which requires indemnity is not applicable in case the loss occurs after maturity. Elliott vs. Woodward, 18 Ind., 183; Bank vs. Ringel, 51 Ind., 393, Gregg vs. Bank, 87 Ind., 238. The agreement of an acceptor or payor of a bill of exchange is that upon a date fixed he will pay upon presentment of the identical bill. He has the right to insist upon the condition, but the power of a court of equity to compel payment upon suitable indemnity is thoroughly established. Bank vs. Haskins, 101 Mass., 370. When an accident occurs which was not anticipated and provided for when the contract was made, and which leaves one of the parties remediless in a court of law, the jurisdiction of a court of equity may then be invoked to give relief against the accident. Daniel, Neg. Inst., Sec. 1477, 1478; Rand., Com. Paper, Sec. 1696; Adams vs. Edmunds, 55 Vt., 353. It would be against conscience that the maker should escape payment of an honest debt, notwithstanding satisfactory proof that the bill had been lost or stolen, and hence could not be presented, and notwithstanding the holder had tendered adequate indemnity. Fales vs. Russell, 16 Pick., 315; Thayer vs. King, 15 Ohio, 242; Smith vs. Rockwell, 2 Hill, 482; Snyder vs. Wolfley, 8 Serg. & R., 328. There was no error."
2Ex parte Greenway, 6 Ves., 812; Patton vs. Campbell, 70 I1., 72.
Hansard vs. Robinson, 7 Barn &
C., 90; 1 Scott, 412. 123 Ind., 41; 23 N. E., 972.