The opinion of the court was delivered by
— It does not appear, from the report itself, that the affidavit of the plaintiff was admitted in evidence to prove the loss of the note. It is not so stated in the affidavit of the defendant’s counsel, and the affidavit of the chairman of the reference expressly states, that it was rejected. The court below, then, were fully justified in finding the fact of its rejection, and it would indeed have been strange if that court had, upon the application of the defendant, set aside the report, simply on the ground that the referees had omitted to report their decision as to the admissibility of the
The report finds that the note was given for lands sold and conveyed to tfie defendant, at the same time the note was given, and also the loss of the note, a demand of payment after it became due, and a refusal by the defendant. The referees "are the sole triers of the facts, and their finding must be conclusive upon the parties. The law is well settled, that, when a note not negotiable, or if negotiable by being payable to order, not negotiated, is lost, an action at law may be maintained on the note, on proof of its loss, to recover its contents.
If the note is shown to have been negotiable and actually negotiated, and the evidence shows merely the loss of the paper, and not its destruction, the plaintiff’s remedy is in chancery, where the court will require the party to give the maker a sufficient indemnity against the outstanding paper, before they grant him relief. If the note or bill is payable to A. B. or bearer, or to the bearer, and it is lost, the remedy in such case must also, probably, be in chancery, since the legal title to such paper passes by delivery. See Bayley on Bills 413, 414, and notes. Chitty on Bills, 293. Pintard v. Tackington 10 Johns. R. 104. McNair v. Gilbert, 3 Wend. 344. Welsford v. Watson, 4 Bingham’s R. 273. Rowley v. Ball, 3 Cowen’s R. 303. Kirby v. Sisson, 2 Wend. R. 550, The referees report that no evidence was given tending to prove whether the note was payable to order or bearer, or not. In Pintará v. Tackington it did not appear whether the note was negotiable or not, and the plaintiff was permitted to recover at law. The same principle is sustained by the case of McNair v. Gilbert.
These cases proceed upon the ground, that it must, affirmatively, be made to appear that the paper was negotiable and had been in fact negotiated, or else payable to bearer, so as to pass by delivery in order to defeat a recovery at law, in the case of a loss of the instrument. If, in the absence of any proof, we were to hold that the note was to be considered negotiable by intendment, in the first instance, yet, it would be going too far to intend it was payable to bearer, or that it had been in fact negotiated by the payee, prior to its loss. It is said the plaintiff cannot recover on the note, either on the first or second count in his declaration
We then think, without giving any opinion as to the plaintiff’s right to recover on the money counts, that he^fmay recover on his fourth count and the judgment of the county court is affirmed,