Schmidt v. People's National Bank

27 N.E. 595, 153 Mass. 550, 1891 Mass. LEXIS 335

Opinion

Morton, J.

Whether regarded as a rule of practice or as a rule of law, it is well settled in this State that it is within the power of the court in an action at law upon a lost note by the owner thereof, or by the party entitled thereto, to require the plaintiff, before the entry of judgment thereon and the issuing of execution, to file a suitable bond of indemnity for the protection of the maker or of the party or parties whom the plaintiff seeks to hold in such action. Fales v. Russell, 16 Pick. 315. Almy v. Reed, 10 Cush. 421. Tower v. Appleton Bank, 3 Allen, 387. Tuttle v. Standish, 4 Allen, 481. Tucker v. Tucker, 119 Mass. 79. Hinckley v. Union Pacific Railroad, 129 Mass. 52. Cobb v. Tirrell, 141 Mass. 459, 462.

The reason of the rule is, that the maker or the party whom it is sought to hold is, upon payment of the amount due upon' the note, entitled to its production and surrender; but as this cannot be done when the note is lost or destroyed, and as it would in such a case be unjust to permit the maker or parties liable on the note to escape liability altogether by means of its loss or destruction, if they can be sufficiently protected in case it should afterwards come to light, and would be a hardship on the plaintiff to compel him to resort to a court of equity, the injustice and hardship which would otherwise result are avoided, and the defendants are protected by allowing the plaintiff to take judgment and have execution upon filing a suitable bond of indemnity. Cobb v. Tirrell, 141 Mass. 459, 462.

The trial in the present case was before the court without a jury, and the judge who tried the case found as a fact that the certificate was not destroyed, but was lost, and found for the plaintiff for the amount of the certificate with interest at two per cent, but ordered judgment not to be entered without the production of the certificate until a bond was filed by the plaintiff conditioned to save the defendant harmless, to the satisfaction of the court.

The finding of the court that the note was lost was a finding of fact, which cannot be revised here even if we saw any reason, which we do not, to doubt its correctness, and it is perfectly evident upon the cases cited above that it was entirely within the power of the court to make the order which it did, in regard to the entry of judgment. It is also clear that the finding in regard to interest was correct. Brannon v. Hursell, 112 Mass. 63. Union Institution for Savings v. Boston, 129 Mass. 82. Pierce v. Boston Five Cents Savings Bank, 129 Mass. 425.

In accordance with the report, the entry must therefore be,

Judgment on the finding.