The action against the bank upon its notes should be at law, and under a statute it may be for money had and received;l and the action for destroyed notes, where no indemnity is needed, is at law.2 Where the action is against the stockholders, if at law, the first judgment creditor would obtain a preference, solvency or dissolution. See Sec. 62, ante.

11Lane v. Harris, 16 Ga. 217. But in almost every statutory system it is conclusive. See Sec. 69, ante.

12Grew v. Breed, 10 Met 569.

13 Crease v. Babcock, 10 Met. 525.

14 Crease v. Babcock, 10 Met 525. See Sec. 64, ante.

15 Belcher v. Wilcox, 40 Ga. 391; Branch v. Baker, 53 Ga 502. But the general rule is otherwise. Sacramento Bank v. Pacific Bank, 56 Pac. R. 787. This ruling destroys the equality among the note holders.

16 See Sec. 59, ante, note 10.

17 McDougald v. Lane, 18 Ga 444. 18 Robinson v. Bealle, 20 Ga. 275.

This could not be the rule if the liability was several, and where the remedy can only be pursued in equity and no creditor can obtain a priority, it is difficult to see how such a release could be effective unless made by all the creditors. Most of the states have statutes, however, abolishing this rule as to joint debtors.

1 Goodenow v. Duffield, Wright, 455; Attwood v. Bank of Chilli-cothe, 10 Ohio, 526. See People v. New York C. P., 19 Wend. 1 la The note-holders are not assignees in any sense of the term. Wood v. Dummer, 3 Mason, 308.

2 Bank of Mobile v. Meagher, 33 Ala. 622.

3Lowry v. Parsons, 52 Ga. 356. See Sec. Sec. 67-69, ante.

4 Dougherty v. "Western Bank, 13 Ga. 287; Long v. Bank of Yancey-ville, 81 N. G 41.

5 Kimbro v. Bank of Fulton, 49 Ga. 419. Contra, State v. Bank of Tennessee, 5 Baxt. 101.. See Bullard v. Bell, 1 Mason, 252; Ballard v. Green bush, 24 Me. 336; Solomons v. Bank of England, 13 East, 135.

6 Thurston v. Wolf borough Bank, 18 N. H. 391; Bank of Memphis v. White, 2 Sneed, 482.

7 Lane v. Morris, 8 Ga. 468. See as to certificates of deposit, Sec. 169, ante.

8 See two cases in note 6, supra. Contra, Samples v. Bank, 1 Woods, 528, following the rule in Georgia.

9 State Bank v. Van Horn, 4 N. J.

Law, 382; Bryant v. Damariscotta Bank, 18 Me. 240; Haxton v. Bishop, 3 Wend. 13; Dougherty v. Western Bank, 13 Ga. 287.

10 Bank of Kentucky v. Hickey, 4 Litt. 225; Bank of Utica v. Magher, 18 Johns. 341.

11 See note 7, supra, and Taylor v. Cook, 14 Iowa, 501.

12 Hall v. Bank of Virginia, 14 W. Va.584.

13 Grew v. Breed, 10 Met 569. And the beneficiaries need not be joined.

14 See Sec. Sec. 67-69, ante. And see Wilson v. Bank of Lexington, 72 N. C. 621.

15 Carey v. Greene, 7 Ga. 79.

16 Bank of Mobile v. Meagher, 83 Ala. 622.

17 Irwin v. Planters' Bank, 1 Humph. 145.

18 The record would fail to show what notes were recovered upon.

19 Bank of Mobile v. Meagher, 33 Ala. 622. Circumstantial evidence of loss was held insufficient. Tower v. Appleton Bank, 85 Mass. 387. Under such circumstances indemnity will not be permitted. See last ca3e.

20 Gardner v. Post, 43 Pa. 19. The court say the corporation's existence was not proven.

21 This must be the case wherever the liability is created by statute, unless the court in the particular jurisdiction refuses to take judicial notice of a private act

22 Johnston v. Southwestern Bank, 3 Strob. Eq. 263.

23 Johnston v. Southwestern Bankr supra.

24 Grew v. Breed, 10 Met 569.