delivered the opinion of the court.

Bennedict and Kennedy, as survivors of the late firm of Emory Low, & Co., recovered a judgment against the Commercial Bank of Kentucky, before, a justice of the peace of Jefferson county, for forty dollars and costs. Upon an appeal from that judgment to the county court of Jefferson county there was a verdict and judgment in favor of the appellees, for forty dollars; and to reverse that judgment the bank has prosecuted this appeal.

The facts established by the testimony, (in regard to which there seems to be no controversy,) are substantially these: On or about the 12th of October, 1854, Kenyon, an attorney at law at Jacinto, in the State of Mississippi, collected for the appellees, forty dollars and remitted to them at Louisville, by mail, the left hand halves of two notes, of the denomination of twenty dollars each, on the Commercial Bank of Kentucky, at Paducah, retaining the two remaining halves to be remitted afterwards. Receiving no acknowledgment from Benedict & Co., of the receipt of the letter and its enclosure, Kenyon wrote again to enquire into the matter, and was soon afterwards informed by his correspondent that the halves of the two bank notes had not been received. He thereupon advised the bank, by letter, of their loss. The president of the bank replied, offering to redeem the two halves still in possession of Kenyon, by paying ten dollars for each half, but declining to redeem or pay any thing for those which had been lost. Kenyon afterwards remitted the other two halves of the notes to the appellees, by whom they were in due time received, and they instituted this suit to recover the amount of the two bank notes thus in part destroyed or lost.

The bank resists the right of the appellees to a recovery, and- seeks to reverse the judgment in their favor upon two grounds:

1. That the written evidence of its obligation has been changed, not by casualty, but voluntarily, by the appellees or their agent, and that they have no right to recover upon the notes so altered.

2. That a court of law Eas no jurisdiction in such cases.

We are not aware that any question similar to the one now before us has everbeen decided by this court. In the courts of the other states, and of England, however, the liability of banks, upon notes or bills which have been- lost, or which have been impaired by design, where such design is not to injure the maker or to cancel the debt, has been established in cases almost without number. In the case of Martin vs. the Bank of the U. S. 4 Wash. Cir. R. 253-255, the nature and.extent of the liability in such cases is very lucidly stated by Mr. Justice Washington. He lays dowm the principle that a bank note is the evidence of a debt due by the maker to the holder of it, and nothing more. “It is also the highest species of evi- ‘ dence of such debt, and in fact the only proper evi- ‘ dence, if it be In the power of the owner of the ‘ note to produce it. But if It be lost or destroyed ‘ the owner does not thereby lose his debt, but the £ same continues to exist in all its rigor, unaffected £ by the accident which has deprived the owner of £ the means of proving it, by the note itself.” The debt still existing, the law which always requires the best evidence permits the party, where such better evidence is lost or destroyed, or not in his power, to prove the genuineness and contents of the lost paper, and if this be satisfactorily made out he is entitled to recover. Cutting a bank note into two parts does not discharge the bank from the debt, of which the note wras but the evidence. If one of the parts should be lost or destroyed the debt would be no more affected than if the entire parts had been lost or destroyed. *311The evidence is impaired, indeed, not by the act of cutting the note, but by the same accident which would have affected the entire note had that been lost. In both cases the owner must resort to secondary evidence, and is bound to prove that the note did once exist, that it is lost or destroyed, and that he is the true hona fide owner of the debt. “If one part ‘ only of the note be lost, the difficulty which the real * owner of it has to encounter, in proving his right to ‘ the debt, is diminished.”

We deem it unnecessary to multiply authorities upon this point. The principle to be applied to the facts of the case before us is, that the parts of the notes held by the appellees are not to be regarded as the foundation of the action, but merely as evidence of their debt, founded upon the written promise or obligation of the bank, which promise or obligation had existed in the form of a bank note, and which has been impaired, not with the design of injuring or defrauding the bank, but as a measure of safety and protection to the owners, adopted by their attorney, and dictated by prudence. Having established the existence of the debt, and proved satisfactorily that they are- the hona fide owners of it, their right to recover is unquestionable.

In general the bank might be entitled to a- bond of indemnity before a right of action upon a lost note would accrue to the owner, but in this case the bank having denied its liability, the preliminary tender of such bond was dispensed with. The bond copied' into the record, and appearing to have been executed, before judgment, must be deemed sufficient under the circumstances.

2. There are several- conclusive answers to the obr jection that the court had not jurisdiction. No objection, on this ground, appears to have been taken in the court below. But the Civil Code, sec. 6, expressly gives the remedy by ordinary proceedings in actions founded on written obligations, which have been lost or destroyed.

*It may be proper to remark, in this connection, that under a special act of the legislature, approved February 25, 1854, entitled, “an act to establish a levy and county court for Jefferson county,” an appeal lies from the judgments of that court to this, where the matter in controversy is over twenty dollars.

We are satisfied that the record exhibits no error prejudicial to the substantial rights of the appellee, and .the judgment is therefore affirmed.