
    Cabell’s Executors v. Megginson’s Administrators.
    Decided, Oct. 26, 1818.
    i. Equity Jurisdiction"’ — Case at Bar. — A devisee of nearly all the estate of a principal debtor, gave a bond to indemnify the estate of the surety against the debt; in which bond one of the executors of the surety bound himself, in his individual character, as surety for the said devisee. The creditor, afterwards, obtained a judgment, in the Federal Court, against the said executors; one of whom, (viz. the same who was co-obligor in the bond of indemnity,) paid off the Judgment. The said bond being in the possession of one of the obligees, who resided out of the State, and refused to let them have it, the Executors brought a suit in Chancery, against the said devisee, (the plaintiffs and defendant being all citizens and residents of this State,) to recover of him the money so paid; and the Court’s jurisdiction was sustained.
    a. Jurisdiction — Common-Law Counts. —It seems, that, if a judgment be rendered, in a Federal Court, against the executors of a surety, and they pay the money; they cannot recover it against a devisee of the principal debtor, by motion, or any action at common law, in the General Court or any other Court of law, of this Commonwealth.
    3. Chancery Practice — Bill to Set Up Lost Bond — Affidavit.—According to the practice in our Courts of Equity, it seems that a Bill to set up a. lost bond, need not be supported by the plaintiff’s affidavit.
    Some time about the year 1771, Joseph Cabell became bound, as the surety of William Megginson, in a bond to George Kippen & Co. British merchants, for the sum of Sill. 17s. 8d. payable May 11th 1771. In the year 1777, William Megginson died, leaving to his. son Joseph C. Megginson, by Will, nearly all his estate both real and personal, which was very considerable. Joseph Cabell administered on that estate, and became the guardian of *the said Joseph C. Megginson, who was the son of his daughter. In 1797, he settled his accounts as administrator and guardian, and Joseph C. Megginson gave him a receipt in full for all his transactions as such. In 1798, he died, having by his Will given a considerable property to the same Joseph C., and farther devised as follows: “It is also my desire that my grandson Joseph C. Megginson may be released by my executors from all demands and debts on account of his father’s estate to mine, except the British debt I stand bound as security for his father.”
    After the death of Joseph Cabell, his executors and other devisees and legatees, entertaining apprehensions on account of the said British debt, expressed the same to Joseph C. Megginson, who thereupon assured them that the debt was paid off or nearly so, and that he had vouchers to prove it; but, to prevent the possibility of injury from that quarter, they proposed to give him a thousand dollars to indemnify the estate of their testator; to which he agreed, and accepted two negro men slaves, valued at that sum, in consideration whereof he executed a bond, to Robert C. Harrison, William J. Lewis (one of the executors,) and John Bracltenridge, conditioned to indemnify the estate of his grandfather, against the said British debt, and all claims on account of his father’s estate; and Joseph Cabell (the other executor, ) became the surety to the said bond, in his individual character.
    George Kippen & Co. afterwards instituted a suit in the Federal Court, and obtained a judgment, against the said executors, for the sum of 8651. 15s. 3d. which was paid by the last mentioned Joseph Cabell to James Lyle the factor and agent of the said Company, on the 23d of October 1808.
    Suit was then brought, by the Executors, against Joseph C. Megginson, in the Superior Court of Chancery for the Richmond District, to recover of him the money so paid; the plaintiffs alledging in their Bill, that the bond of indemnity given as aforesaid was lost by time or accident, and no copy thereof was in their possession; *that the parties interested considered the plaintiff Cabell responsible individually, in consequence of his suretyship aforesaid, but were willing that the claim should be fixed at once on the proper person.
    The defendant, by his answer, admitted the material statements of the bill, but al-ledged that the sum recovered by Kippen & Co. was much more than was due; that, before the said recovery was had, the complainants were informed by him that he had sundry vouchers to prove this; a description of which was given in the answer; that the Complainants failed to apply to him for the said vouchers, and to make the proper defence to the suit of Kip-pen & Co., to whom, therefore, the Complainant Cabell paid the money in his own wrong. The defendant alled'ged that he had not received a portion of certain slaves devised to him by his grandfather, which were sold by the said Cabell.
    He filed a cross-bill against the Complainants, making Kippen & Co. and James Kyle their agent or factor, and John Cabell, defendants thereto; alledging his belief that the debt to Kippen & Co. was nearly paid; that, not being a party to the suit brought by them, he supposed he could not defend it; that he believed many of his father’s papers were in the possession of John Cabell and of the said Complainants, of which he prayed a discovery from them; and, also, from Kippen & Co. and Lyle, an account of all the payments made towards the said debt; and that their books be produced for examination. John Cabell, and the plaintiffs in the first suit, all denied possession of any such papers. Joseph Cabell in his answer stated that, during the pendency of the British suit, he frequently applied to Megginson for vouchers, but could not obtain them until after it was decided; and then he found that credit had been given for all the payments shewn by those vouchers, and for many more: that, as to the negroes, part of whom were «devised by Joseph Cabell the elder to Meg-ginson, they did not belong to the testator; that the other devisees had gratuitously given Megginson a moiety of a tract of land of 3000 acres, and that the respondent had given a negro to each of Meggin-son’s *children. He exhibited with his answer a copy of the bond of indemnity, (admitted by Megginson to be a true copy;) stating the original to be in the hands of Robert C. Harrison, in Kentucky, who would not give it up.
    The suits abated as to Megginson by his death, and were revived in the names of his administrators.
    The cross suit does not appear to have been matured for hearing as to Kippen & Co. and Lyle, when both causes were brought on to be heard by consent of parties.
    Chancellor Taylor, “being of opinion that, when the plaintiffs paid the debt in the bill mentioned, as representing Joseph Cabell the security of William Megginson, to George Kippen & Co., they, the plaintiffs, had a plain remedy, at law, against the defendant in the first suit, as appears by their bill, and might have been reimbursed by a motion, under the Act to empower securities to recover damages in a summary way,” dismissed their Bill, -with costs, “without prejudice to any suit they might be advised to institute, either under that act, or at the common law, for recovery of the money in the bill mentioned.” He dismissed also the cross bill, at Meg-ginson’s costs, and ordered the Clerk to put the costs of one suit against the other, that the balance might be known, so that only one execution might issue.
    Prom this decree the plaintiffs in the first suit appealed.
    Stanard for the appellants,
    insisted, that, independently of the bond of indemnity, they were entitled, as executors of the surety, to relief in Equity:—
    1st, Because the statutory remedy by motion does not oust the Court of Equity of its pre-existing jurisdiction over the subject ; ■
    2dly, Because there was no State Court competent to give effect to the remedy by motion. The judgment was in the Federal Court, and the Act of Assembly gives the remedy in that Court only, in which the judgment was rendered. Even the Federal Court had not jurisdiction; for all the parties were citizens of this State:— *3dly, Because there was no person against whom the motion could be made; there being no living executor or administrator of the original debtor:—
    4thly, Because, at that time, the statutory remedy was inadequate; since, on the recovery by motion, interest was not allowed.
    The complainants were also entitled to relief on account of the loss of the bond of indemnity. Besides, — Joseph Cabell, who paid the' amount of the Judgment, (being bound as Megginson’s surety that it should be paid,) could not charge the disbursement in his account as executor. He had no remedy by motion against Megginson, as no judgment had been rendered on the bond to which he was the surety; and he was clearly entitled to relief.
    John Robertson contra.
    This is a case purely of common law jurisdiction. Admitting that the plaintiffs, representing the original surety, had no remedy by motion, they might have resorted to their action of assumpsit. But, in fact, their motion might have been made in the General Court. It does not appear in the Record, that the estate of William Megginson the principal debtor was not. represented. On the contrary, Joseph C. Megginson was his heir; and, by the Act of Assembly, the motion is authorised against “heirs, executors or administrators.” The Judgment being obtained in 1808, the remedy was complete for interest, as well as for the sum paid,
    
    The ground taken to give the Court jurisdiction, that the Bond of indemnity was lost, is admitted by the answer to the cross bill not to be founded in fact. But, as to this point, the bill should have been supported by affidavit, It is therefore defective on it’s face, and was properly dismissed, though no plea to the jurisdiction was filed. 
    
    Samuel Taylor on the same side. The question resolves itself to this. Will a Court of Equity maintain a Bill for the sole purpose of compelling a principal to repay money to his surety?
    "Stanard in reply. — An affidavit to a Bill for setting up a lost bond, is, I doubt not, required by English practice: but I have never known such a bill verified by the Plaintiff’s affidavit, in this Country. Admitting, however, it were necessary, advantage of the omission ought to be taken by demurrer. If it be not demanded in the Court below, objection for want of it ought not to be made in the appellate Court.
    Megginson’s answer does not deny the loss of the bond. The fact made out in the cross suit is, that, though in existence, it is indeed lost to us, being out of our power, and beyond the jurisdiction of any Court in this State.
    
      
      Jurisdiction. — See generally, monographic note on Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
    
      
      Chancery Practice — Bill to Set Up Lost Bond. — Affidavit,—See Little v. Cozad, 31 W. Va. 190, citing-principal case.
    
    
      
       Edit. of 1794, 1803 and ’14, c. 65, § 5
    
    
      
       Ibid. c. 145, § 1.
    
    
      
       See Edit. of 1808, c. 87, p. 114.
    
    
      
       Fonbl. 15, Cooper’s Eq. 267.
    
    
      
       Pollard v. Patterson’s adm’r. 3 H. & M. 67.
    
   JUDGE ROANE

pronounced the Court’s opinion, that the Decree in the original suit was erroneous in dismissing the Bill for want of jurisdiction; that it therefore be reversed, and the cause remanded, to be farther proceeded in upon it’s merits; and that so much of the said Decree as dismissed the cross-bill, be affirmed.  