#### John F. Devine, Administrator, Defendant in Error, v. Andrew Bickel, Plaintiff in Error.

Gen. No. 19,292.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Affirmed.

Opinion filed October 8, 1914.

*117Statement of the Case,

Action by John F. Devine, administrator of the estate of Martin Podpecan, deceased, against Andrew Bickel in the Municipal Court of Chicago to recover three hundred dollars, with interest, loaned by the deceased to defendant. It was alleged in the statement of claim that the defendant gave the deceased, at the time of the loan, a promissory note to evidence the loan; that the note had been lost; that it was never indorsed or transferred by the deceased, and that there was due on the same $333; and the plaintiff offered a bond to the defendant in double the amount due, to hold him harmless from further payment of the said note, as by statute in such case made and provided. The defendant, in his affidavit of merits, admitted the making of the said note, and that the same had never been paid, and he offered to pay the same upon production, cancellation and surrender thereof.

The case was tried by the court without a jury. The plaintiff made proof tending to establish the loss of the note and then tendered to the defendant in open court an indemnity bond as provided for by section 14, ch. 98, Hurd’s R. S., J. & A. ¶ 7637, in the sum of $666, with sureties to be approved by the court, but the defendant refused to accept the bond. The court found the issues for the plaintiff and entered judgment on the finding. To reverse the judgment, defendant prosecutes a writ of error.

The defendant contended that the note in question was adapted to circulation by an indorsement thereon, and for that reason absolute proof that the note was actually lost or destroyed was necessary to entitle the plaintiff to a judgment; that the evidence in the case does not show absolutely that the note was lost or destroyed, nor. that the deceased owned the note at the time of his death. The defendant further contended that the proof did not show that the deceased had not indorsed the note.

117

*118Abstract of the Decision.

1. Lost instruments, § 14a * —sufficiency of proof to establish loss or destruction of note. Since the enactment of section 14, ch. 98, Hurd’s R. S., J. & A. ¶ 7637, empowering the court to protect the-maker of -a lost note by requiring the plaintiff to execute an indemnity bond, the plaintiff is not required to prove absolutely the-loss or destruction of the note in cases where it is not shown that it was not adapted to circulation by an indorsement thereon, and proof which reasonably shows its loss is sufficient.

2. Lost instruments, § 9 * —effect of refusal of tender of indemnity bond. Where in an action on a lost note there was proof sufficient to reasonably show that the note was Tost, and defendant,, though admitting the indebtedness, refused a tender of an indemnity bond as provided by section 14, ch. 98, Hurd’s R. S., J. & A. ¶ 7637, the court on entering judgment against him is not required’ to order the plaintiff to execute such bond, and defendant cannot thereafter complain ¿hat he may suffer loss through the note.

Caswell & Healy, for plaintiff in error.

John M. Bryant, for defendant in error.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same-topic and section number.

Mr. Justice Scanlan

delivered the opinion of the court.