
    *Thornton v. Stewart.
    January, 1836,
    Richmond.
    (Absent Caujsuu J.)
    Equity Practice — Lost Bond Affidavit. — Upon a bill in equity l'or relief upon a lost bond, though regularly an affidavit of the loss of the bond &c. ought to be tiled with the bill, yet if such affidavit is not so Hied, but is filed afterwards in the progress of the cause, this is sufficient.
    Same — Bill of Review — Error of Law- Right to Allege New Matter — Answer.- -To a final decree for S. against T. the latter files a bill of review for errors ill law In the proceedings and decree; S. cannot, in an answer to the bill of review allege any new matters of fact.
    Same — Same—Same—Reversal of Decree — Cause Remanded. --Bill of review of a decree for errors in law, dismissed by the court of chancery; and the decree dismissing the bill of reyiew reversed by this court, and the original decree reversed; yet, as it appeared that the plaintiff in the original cause might have a just claim, the original cause was remanded for further proceedings.
    This suit was commenced in the county court of Nelson, where it was long pending, and was thence removed by certiorari to the superiour court of chancery of Lynchburg.,
    It was a bill in chancery exhibited by Stewart against Thornton and Scruggs, to set up a lost bond executed by Thornton to Scruggs, and by him transferred to Stewart; and the bill, after alleging that the bond was executed by Thornton to Scruggs, in consideration of land sold by Scruggs to Thornton, and that the bond was transferred for valuable consideration, without a written assignment, by Scruggs to Stewart,— averred, that the bond had been lost by accident; that this fact had been communicated to both the defendants; that Thornton refused to pay the amount, though Stewart had offered him indemnity against the bond in case it should ever be. found, alleging that Scruggs had no title to the land for the price of which the bond was given, and so Thornton was not bound in equity to pay off the bond; and that Scruggs, well knowing that the consideration *'of the bond was insufficient, refused to do any thing. Therefore, the bill prayed a discovery from the defendants, of the execution of the bond, and of the transfer theieof to Stewart, and such relief as he should be found entitled to. This bill was not verified by affidavit; nor was any affidavit filed with the bill, of the fact of the bond being lost.
    Scruggs, in his answer, said, that the bond in question was executed by Thornton to him for the purchase money of land sold by him to Thornton, which he had bought of one Harper; that Harper had never conveyed it to him ; but that Thornton was apprised of the defect of title, and of Scruggs’s inability to convey a good title, and expressly agreed, that he would take Scruggs’s right, such as it was, and that the defect in the title should not preclude Scruggs from receiving the purchase money; and that Thornton took immediate possession of the land, and had held .undisturbed possession ever since. He answered further, as to the transfer of the bond to Stewart, that he Scruggs owing a debt to one Varnum, and Stewart being Varnum’s agent for the collection of it, this bond of Thornton was put into Stewart’s hands, upon condition, that if Scruggs should not pay the debt due Varnum, on a day appointed when Stewart was to come to Scruggs’s house, Stewart should have Thornton’s bond, without recourse against Scruggs ; but Stewart did not come to Scruggs’s house, at the appointed time, or afterwards; nor (so far as Scruggs was informed) had he paid the debt due Varnum ; and Scruggs did not know what had become of the bond.
    Thornton, in his answer, admitted the execution of the bond to Scruggs; but he said, it was given for the purchase money of land, for which Scruggs stipulated to convey him a good title before the purchase money should be paid ; that though Scruggs pretended to have a good title, he had no> title; that the title was in one Harper, supposed to be a resident of the state of Georgia; *that Thornton was not bound to pay the money due on the bond, till the title was perfected; that one Loving had once shewn him the bond, and applied for payment, but for the reasons here mentioned, he had refused payment.
    There was a general replication to Thornton’s answer, but no replication to the answer of Scruggs.
    A single deposition was taken and filed, in which the deponent stated, that at Stewart’s request, he had once applied to Scruggs for some money which Stewart said Scruggs owed him; whereupon Scruggs said, that he had discharged the debt he owed Stewart with Thornton’s bond, which Stewart had traded away; and Scruggs would pay him nothing more.
    The cause was set for hearing in the county court.
    And in this state of it, it was removed to the superiour court of chancery; and there, many years after the commencement of the suit, the plaintiff made and filed an affidavit, that the bond, at the time of the exhibition of the bill, and still, was lost, and that he had no hope of ever finding it.
    The chancellor, upon a hearing, decreed, that Thornton should pay Stewart the amount of the lost bond with interest, and the costs of the suit.
    At the next term, Thornton, with leave of the court, filed a bill of review for errors apparent in the record and decree, 'viz. 1. Because it was stated in the bill, that the bond alleged to be lost, was given for the purchase money of land sold by Scruggs to Thornton, and this was admitted by Scruggs in his answer, who also admitted that he had no title to the land, and that the title was outstanding in Harper. 2. Because interest on the bond was decreed, though Thornton was nowise in fault, there being no proof of the allegation of the bill, that Stewart had offered to indemnify him against the bond in case it should af-terwards be found. *3. Because Stewart and Scruggs differed as to the fact of the transfer of the bond by the one to the other; and the decree would not protect Thornton against any claim which Scruggs might assert upon the bond; since the cause had not been set for hearing as to him, nor was there any replication to his answer. 4. Because the decree was made before the cause was properly matured for hearing as to any of the parties. 5. Because Harper, who held the title of the land for the purchase money whereof the lost bond was given, ought to have been made a party defendant. Wherefore, the bill prayed, that the decree should be reviewed and reversed &c.
    To this bill of review Stewart put in an answer, in which, after denying that there was any error or injustice in the proceedings and decree, he alleged, that Thorntón had purchased the land from Scruggs for the price whereof the lost bond was executed, with full knowledge of the defect of Scruggs’s title, and therefore, notwithstanding the defect, he was bound to pay the purchase money; that Thornton had repeatedly promised payment thereof to Stewart, and never objected to pay the debt on the ground of such failure of the consideration, till shortly before the commencement of the original suit in the county court; that there was not, and never was, an3r disagreement between him and Scruggs, as to the transfer of the bond to him for valuable consideration; that Thornton had been in possession of the land sold him by Scruggs, for more than twenty years, and was in no danger of disturbance from Harper, but Stewart was willing to indemnify him against Harper’s claim; and that the decree of the court had rendered substantial justice in the case, and therefore it ought not now to be disturbed.
    To this answer of Stewart, a general replication was put in; Scruggs made default ; and the cause having been set for hearing as to both of them, the chancellor dismissed the bill of review.
    *Thornton appealed to this court from the decree on the original bill, and from the decree on the bill of review.
    Johnson and Robinson, for the appellant.
    The original bill being a bill for relief on a lost bond, should have been accompanied with an affidavit that the bond was lost; 2 Rob. Prac. 39, 40, where the authorities are collected. Without such an affidavit, equity could not take jurisdiction of such a bill; and, therefore, the affidavit subsequently made does not help the case. But if this objection was obviated by the subsequent affidavit, the decree on the original bill was clearly wrong, and consequently the decree on the bill of review was wrong too. The original bill alleged, that the consideration of Thornton’s bond to Scruggs, was the purchase money of land sold him by Scruggs; and Scruggs’s answer admitted that this consideration had wholly failed ; for all that was said in Scruggs’s answer, as to Thornton’s being apprised of his want of title to the land, and agreeing to purchase his right whatever it was, were affirmative allegations, which, as there was no proof of them, the chancellor ought to have disregarded altogether; and putting those allegations out of the case, it is plain, Thornton was not in equity bound to pay off the bond. As the bond was certainly given for the price of land for which Scruggs had no title, and of which the title was in Harper, Harper should have been made a party, in order that the title might be perfected, before Thornton should be compelled to pay the money. The original decree was wrong too, in giving costs against Thornton, who certainly was in no default; and in ordering Thornton to pay the money, without providing any indemnification to him, against future demands of others claiming title to the bond, and all costs and damages; East India Co. v. Boddam, 9 Ves. 464. These are fatal errors in the original proceedings and decree. And they 'i;'are errors proper to be corrected on a bill of review; but it is immaterial whether the bill of review was the proper remedy or no, since the cause is before this court on an appeal from both decrees. Stewart’s answer to the bill of review, was wholly irregular, so far as it contained new allegations of fact.
    Garland, for the appellees.
    The original decree, and the decree on the review, are both right. The original bill alleged, that Thornton’s bond to Scruggs was given for the price of land sold by Scruggs to Thornton ; and this Thornton admitted in his answer. He added, indeed, that the consideration had failed, because Scruggs had no title to the land sold; but this was an affirmative allegation of the answer, of which no proof was adduced or attempted; for Scruggs’s answer was not evidence for Thornton. It was, then, the simple case of the holder of a bond alleging that it was lost, and asking the chancellor to set it up, and the obligor acknowledging the execution of the bond, but seeking to avoid the obligation of it, by merely alleging, without even attempting to prove, that the consideration for which it was given had failed. If Scruggs’s answer can be referred to, as evidence for Thornton that the title of the land was defective, its other allegations were proper evidence against him; and then the decrees were clearly right. Harper had no interest in the controversy; and therefore, need not have been brought before the court. As to the affidavit of the loss of the bond, there was one; and the only objection is, that it was not filed with the bill, but in the progress of the cause afterwards: but as the only purpose of requiring an affidavit in such cases, is to prevent the suppression of the bond by the plaintiff in order to conceal a receipt, or credit, or some other entry upon it that may change its effects, if the affidavit was filed, it is to every substantial purpose immaterial when it was filed.
    
      
      Equity Practice — Lost Instruments -Affidavit. — A court of equity has jurisdiction to grant relief on a lost bond and generally such bill must be accompanied by art affidavit; but if the plaintiff fails to file such affidavit, at the time of filing his bill, it maybe filed at any time before the hearing. Lyttle v. Cozad, 21 W. Va. 183. citing Thornton v. Stewart. 7 Leigh 128, at page 197. The third headnote of the above case (Lyttle v. Gozad) is to the effect that, when a court of equity has jurisdiction of the case independently of the loss of the bond, no affidavit need be filed of the loss of the bond.
      In Hickman v. Painter, 11 W. Va. 386, citing the principal case at page 394, where a bill was filed to set np a lost receipt an d to s uch bill was appended the jurat, of the clerk, that the bill was sworn to in open court, it was held that, as the plaintiff swore to the Mil in open court, and as it specifically alleged the loss of the receipt, the oath, thus taken was sufficient to answ-er the requirements of the law as to lost instruments.
      And in Thompson v. Clark, 81 Va. 423, it is said, accompanying the bill is an affidavit of the loss of the bond, which is in accordance with the established rule in such cases. Citing. Thornton v. Stewart, 7 Leigh 128. See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
      Appellate Practice — Bill of Review — Reversal of Decree. — The principal case is cited in Goolsby v. St. John, 25Gratt. 164. See monographic note on “Bills of Review” appended to Campbell v. Campbell, 22 Gratt. 649.
    
   *TUCKER, P.

Both decrees in this case are palpably erroneous. I do not concur in the objection to' the assumption of jurisdiction, being satisfied with the affidavit of Stewart as to the loss of the bond; for though it was not filed with the bill, it is one of those defects, which, I think, may well be supplied in the progress of the cause, where there has been no demurrer to the bill for want of it. But upon the pleadings and proofs, Stewart was entitled to no decree against either defendant.

1. As to Thornton. He confesses the bond, but alleges it was given for land, the title of which is imperfect. Both facts appear from the answer of Scruggs, the vendor of Thornton, and the assignor of Stewart; but Scruggs goes on to say, that Thornton took the risque of title, and had enjoyed uninterrupted possession. Both these allegations are of new and independent matter, which cannot to taken as true until proved. Moreover, the bill itself states, that Scruggs knew the consideration of the bond was insufficient, and therefore refused to do any thing for its recovery. Here, then, is sufficient to protect Thornton, unless by other evidence a new aspect should be given to the case. 2. As to Scruggs: he admits the transfer of the bond to Stewart, for a consideration which is not proved to have been paid, nor has Stewart proved any other consideration. Ho decree therefore could go against Scruggs, even though Stewart failed against Thornton.

The matters stated in Stewart’s answer to the bill of review, are entirely new; and it is quite an anomaly, on a bill of review for error upon the face of the proceedings, to introduce by way of answer, new facts and new grounds of demand, not stated or appearing in the cause sought to be reviewed.

I am clear, therefore, that both decrees must be reversed. What then should be done? Should Stewart’s bill be dismissed? I think not. That cause should go *back, and an issue should be directed to try the matters litigated between Scruggs and Thornton, relative to the bond.

The other judges concurred. Both decrees reversed with costs; and the court proceeding to enter such decree as ought to have been entered on the bill of review, directs that the decree in the original cause be reversed and annulled, and that the cause be remanded for further proceedings, according to the principles here declared.  