Price

Heydenfeldt, J., concurred.

Many errors are assigned in the record,—none of which are tenable.

In Welton v. Adams & Co., 4 Cal., 37 , we held, that in case of the loss or destruction of negotiable paper, the plaintiff could not maintain his action, without first indemnifying the defendant.

This rule was established for the protection and safety of the commercial community, and has not been extended by any subsequent decisions. The plaintiff in this case has brought himself within the rule: the evidence shows that he did tender a bond of indemnity, and further offered,'if such bond was not satisfactory, to furnish such a one as the defendant should suggest or approve. The declaration contains an averment of these facts, as well as of the plaintiff's readiness to submit a bond under the direction of the Court.

Under these circumstances he had done all that he could, and the *485 defendant’s refusal to pay the amount in dispute, may be regarded as founded in captiousness, rather than an objection to the bond,—the sufficiency of which he does not appear to have questioned until the trial.

The objection that the plaintiff is not the party in interest, is without foundation; the…