Appeal from the Sixth Judicial District.

In this case, Harriet Williamson, previous to her *intermarriage with J. S. Welton, one of the [38] plaintiffs below, deposited with Adams & Co., bankers, of the City of San Francisco, the sum of $4,850, for which they issued to her a certificate of deposit, as follows, viz:

“No. 6155.

“Express and Banking Office, Montgomery street,

“Adams & Co., San Francisco, August 28th, 1852.

“Harriet Williamson deposited with us forty-eight hundred and fifty dollars, payable at our office, in San Francisco, on return of this certificate, with her indorsement herein.

“14,850. (Signed) Adams & Co.”

On the 15th of October, 1852, the house in which Harriet Williamson lived was destroyed by fire, together with its contents, including, as alleged by her, the certificate of deposit. Notice of the destruction of the certificate was immediately given to Adams & Co., and payment demanded by her, both before and after her intermarriage with Welton, which occurred on the 28th of January, 1853. Adams & Co. refused to pay the certificate, without its production, or a bond of indemnity. Welton and wife refusing to give indemnity, instituted suit in the District Court of Sacramento, for the recovery of the money, alleging these facts, and their inability to give security. The defendants, in their answer, admitted the deposit, the issuing of the certificate, and their refusal to pay without indemnity, and said that no-indemnity was offered or tendered; that they had always-been, and were still, willing to pay the said sum of money, upon the return of said certificate, with the indorsement, thereon, as required by its terms; or even without such return and indorsement, upon receiving a reasonable and sufficient indemnity against any subsequent demand for the said amount of money.

The District Court, sitting as a jury, found that the certificate had been destroyed, as alleged, and, therefore, rendered judgment for plaintiffs for the amount, with costs of suit. The defendants appealed, and, at the July term, 1853, the judgment of the Court below was affirmed. The Court, however, directed a re-argument.

The Court below erred in refusing to compel the respondents to execute a bond of indemnity; (Story on Prom. Notes, § 107, 109, 445, and notes 446, 448, 450; 14 Com. Law Rep. 90; 8 lb. 431; 3 Wend. 344.) This is an equitable proceeding, and the Court should have decreed indemnity, as a condition precedent. (3Com. Law R. 208; 16 Pick. 315; 3 Stew. Ala. 31; 10 Johns. 103; Pinlcham, v. Taclcington, 2 Hill, 482.) Certificates of deposit are, by statute, made negotiable and assignable. (Stat. of 1850, chap. 10, \ 1; lb. chap. 121, § 1-2; Watts & S. 227.) The Court below should have decreed costs against the plaintiffs, as a condition of the judgment.

The destruction of the instrument having been proved, the danger of future claim is removed, and no indemnity can be required. (10 Johns. 103; 13 Eng. Com. Law B. 430; Chitty on Bills, pp. 268, 394; 3 Stew. Ala. 31; 4 Scam. 334.) A certificate of deposit is not negotiable in the sense in which it is used in the cases where indemnity has been required, or the party has been obliged to go into equity for relief. There is no liability of an indorser as such. (6 Watts & S. 227.) Even if negotiable, it must affirmatively appear that the certificate, when lost or destroyed, was in such a condition that, in the hands of an innocent holder, a recovery could be had, after its payment. (10 Johns, 104; 3 Stew. 31.) The danger of a recovery against the maker is too remote. If the action was at common law, plaintiffs were entitled to costs; if in equity, the granting of costs was in the discretion of the Court.