Exchange Bank of Virginia v. Morrall

Citations

• 16 W. Va. 546
• 1880 W. Va. LEXIS 42

Syllabus

<p>, Where a bill in equity is filed setting up a lost negotiable note and praying a decree against the maker and endorsers for the debt, &c., it is more safe, and more in conformity with what seems to be the general practice, to offer in the bill to give a proper indemnity under the direction of the court. Perhaps, however, this is not in-dispensible in all cases; but this question as to cases which may hereafter arise before this court is left open for further examination and consideration.</p> <p>2. But it is indispensible in such cases, whether the plaintiff in his bill offers to give a proper indemnity under the direction of the court or not, that the court shall, where it decrees for the debt, require ample indemnity for the indemnity and protection of the makers and endorsers of such note, and each of them decreed against for the debt in whole or in part; and the court should provide in its decree substantially, that the plaintiff shall take no benefit thereof, until such indemnity be given.</p> <p>3. It seems, it is not necessary, in order to maintain the suit in equity in such case, that the bond of indemnity should be tendered before suit is brought; still the question of costs in the case is for the court to determine according to equity.</p> <p>4. In order to maintain a suit in equity setting up a lost negotiable note or bond and praying for a decree for the payment thereof, it is in-dispensible, where the loss of such note or bond is controverted by the answer of the defendants, that the loss should at the hearing of the cause be established by competent and satisfactory proofs. If therefore the plaintiff in such bill fails at the hearing to establish the loss of_the instrument, in such case the suit will be dismissed.</p>