
    Peter Chewning v. Louisa Singleton.
    A party who has lost a note payable to bearer although past due, may come in equity for relief. The ground of jurisdiction is not only that he may give indemnity to defendant, but that he must swear to the loss. [*373]
    At Sumter, February, 1835.
    This bill was filed against the defendant, as executrix and sole legatee of Mrs. Anne Chewning, alleging that the testatrix, in her life time, for a valuable consideration, gave the plaintiff her promissory note for $650, payable to him or bearer, at ten days after date, and dated in September, 1832. That the note was seen by divers persons .in his possession, and that in October, 1832, (after the testator’s death,) he lost his pocket book and in it the note. That he has (through her agent) given the defendant notice of the note and its loss, and demanded payment, which has been refused. The bill prays that defendant may answer its allegations, and that the payment of the amount of the note with interest may be decreed, on such terms of indemnity to the defendant against any future liability, as the Court may think proper to impose — and for general relief.
    The bill was sworn to 15th January, 1834, and filed the same day.
    The answer of the defendant denies any knowledge of her testatrix’s indebtedness to the plaintiff, or of the note, or of any transaction by which such a debt could have been created. That shortly before the testatrix’s death, she heard her say she owed the plaintiff nothing; and the defendant does not believe that any such note ever existed. She submits that the plaintiff has an adequate remedy, if any, at law.
    *Johnston, Chancellor. This case was heard upon bill and r^oijo answer. A motion was made to dismiss the bill for want of equity. L The motion is granted and the bill dismissed with costs. The note alleged to be lost, and which the bill seeks to set up was, by the plaintiff’s own showing, past due when it was lost; and thus the necessity for indemnity no longer exists. The bill is not a bill for discovery ; and if it was, all evidence on the plaintiff’s part is excluded, inasmuch as the answer gives no discovery, but denies that such a note ever existed : and the plaintiff has adequate remedy at law.
    The plaintiff appealed, and now moved to reverse the decree on the following grounds:
    1. That the Chancellor erred in supposing that the necessity for indemnity is the ground.of equity jurisdiction ; whereas it is submitted that the indemnity is the condition which the Court annexes; and that no necessity exists to require the plaintiff to give it, can affect his claim to relief.
    2. That there is no adequate relief at law, and Chancery will afford it.
    
      Moses, for the motion.
    The right of the Court to order indemnity does not confer jurisdiction, for there are cases of lost bonds where indemnity has been ordered at law. Jeremy’s Eq. Jur. 261. That the note was past due cannot affect the right of relief; for if one finding the note were to sue on it, before the defendant could get in the defence, she would have to prove that it was lost or transferred after due. M’Caskill v. Ballard, Col. May, 1832. In fact, that the note is due, should be a strong reason for the Court to grant relief.
    The books are full of cases affording relief on lost bonds and notes, and that too, after due. Walmsleyu. Child, 1 Yes. 341; Ex parte Greenway, 6 Yes. 812-13; M’Cartney v. Graham, 2 Sim. 285; see also Tarleton & Davis v. Benbow, 2 Bail. 428. The case of Mossop v. Eadon, 16 Yes. 430, was relied on as denying the right to relief. That case has since been overruled by Hansard v. Robinson, 1 Barn. & Cress. 90, and M’Cartney v. Graham, 2 Sim. 285. The plaintiff cannot have relief at law, because he cannot prove the loss of the note.
    
      W. Mayrant, contra.
    A party may recover, at law, on a lost note, on *373] proof of its existence and loss ; and but slight evidence *of the loss will be required. Chitty on Bills, 170-1-2. Can he recover in equity by his own oath of the loss ? In this case the alleged maker is dead; her executrix denies all knowledge of the note, and avows her belief that it never existed. There is no proof offered. Will the Court sustain .such a claim against the estate of a deceased person, with no other proof to support it than the oath of the party claiming ?
   Harper, J.

My views of this case may be gathered from what has been said by me in the case of Davis & Tarleton v. Benbow, 2 Bail. 427. I have again looked into the authorities on the subject, and find no reason to change any of the views there expressed. It is not questioned but that in some cases a party may come into equity to be relieved, when a bill or note has been lost or destroyed. The cases of Walmsley v. Child, 1 Ves. 341; Ex parte Greenway, 6 Ves. 812, and many others, are sufficient to establish this. The Chancellor seems to have decided chiefly on the authority of Mossop v. Eadon, 16 Ves. 430. The Master of the Rolls, in that case, went upon the ground that the only purpose of coming into equity is to offer an indemnity, and as I gather from the argument in the case, it appeared that the note was not payable to order, so that it could not have been negotiated, and as no action could be maintained upon it by any one into whose hands it might come, indemnity was unnecessary. He therefore dismissed the bill. So the Chancellor supposes that as the note in this case, as appears from the plaintiff’s own statement, was lost after it was due, there was no need of indemnity. But with deference, this seems to me to be founded in misconception. The plaintiff does indeed state that the note was lost after due; but who shall assure the defendant of the truth of that statement? Plaintiff states that he has no proof of the loss. It is for defendant’s benefit that the party is required to come into equity. If an action had been brought at law, she might well have said to the plaintiff, how can you assure mo that you yourself, have not negotiated the note before it became due, and that it may not now be in the hands of a bona fide holder ? The right to indemnity would have been apparent.

But the case of Mossop v. Eadon, seems to have been overruled by subsequent decisions. In the case of Hansard v. Robinson, 7 Barn. & Cress. 90, *3741 the bill was lost after due. Lord Tenderden, *speak-0 ing of the defendant, says: “ But how is he to be assured of the loss or destruction of the bill ? Is he to rely on the assertion of the holder, or to defend the action at the peril of costs ? And if the bill should afterwards appear and a suit be brought against him by another, a fact not absolutely improbable in the case of a lost bill, is he to seek for the witnesses to prove the loss and to prove that the new plaintiff obtained it after it became due ? Has the holder the right, by his own negligence or misfortune, to cast the burden upon the acceptor, even for not discharging the bill on the day it became due ? We think that the custom of merchants does not authorize us to say that this is the law. Is the holder, then, without remedy ? Not wholly so. He may tender sufficient indemnity, and if it be refused he may enforce payment thereupon in a Court of Equity.” In M’Cartney v. Graham, 2 Simons, 285, the bill had been indorsed specially to the plaintiff, so that no other holder could maintain a suit upon it, and it was argued, on the authority of Mossop and Eadon, that as no indemnity was needed, the remedy was at law. But the Court said that Mossop v. Eadon had been overruled by Hansard and Robinson.

Sir William Grant, in Mossop v. Eadon, seems to have overlooked a ground of equity on which the greatest stress is laid by Lord Eldon — a still higher authority. This is the necessity imposed on the party coming into equity to make affidavit of the loss. In Ex parte Greenway, speaking of the decision of the Court of law, in Read v. Brookman, 3 T. R. 151, that in case of a lost deed, profert may be dispensed-with, he says : “ It is questionable whether sufficient attention was paid to the consideration, that in equity the conscience is ransacked, and the party alleging that the instrument is lost, must make an affidavit that it is not in his possession or power.” And in Bromley v. Holland, 6 Ves. 20, “The protection this Court gives in that case, is most essential to the interest of justice. Here the party pledges his conscience by his oath that the instrument is lost.” East India Company v. Boddam, 9 Ves. 464, was a case of a lost bond. Lord Eldon says, that “ if the bond was by a single obligee, the party sued in this Court, stating in his bill that the bond was lost; and accompanying Ms bill with an affidavit that it was lost; not as evidence of the loss, but as a security for the propriety of jurisdiction.” Instances are put in the cases of frauds which might be practised by the wilful suppression* or destruction of the instru- r*ghg ment, similar to what is suggested in Davis & Tarleton v. Benbow. [*375 It may be observed that this applies still more strongly in the ease of a lost bill or note than in that of a bond or deed, as, in addition to the danger of fraudulent suppression or destruction, there is additional danger of the instrument’s having been fraudulently negotiated. There is no doubt, however, but that it was intended to apply in all similar cases. Such is the view taken by Eonblanque, in his notes to the Treatise of Equity, (1 Eonb. 15, 16, IT, n. f.) and by Lord Redesdale, (Mitf. PI. 105-6.)

It is ordered and decreed that the Chancellor’s decree be reversed, and the cause remanded for hearing.

Johnson, J., and O’Neall, J., concurred.  