
    Kerney’s Adm’r v. Kerney’s Heirs.
    November, 1835.
    Richmond.
    (Absent Ttjoker, P.)
    Equity Jurisdiction— Lost Bond. — Equity will set up a lost bond against a surety, and upon satisfactory proof that the lost bond bound the heirs, against the heirs of the principal obligor also.
    Edward Kerney and his brother James Kerney his surety, executed four bonds to Samuel Swearingen, dated the 27th March 1802, for 347 dollars each, payable on the 1st days of April 1804-’5-’6 and ’7. Edward Kerney, the principal, died about the time the first bond fell due, and that bond was afterwards discharged by James, the surety. In 1807, Swearingen exhibited a' bill against James Kerney, the surviving obligor and surety, in the county court of Jefferson in chancery, stating the fact of the execution of the bonds by Edward and James Kerney, for the purchase money of land sold to Edward, and that he had lost the last three bonds, and praying a decree against James Kerney, for the amount of the debt due on the lost bonds, with interest. James Kerney,” in his answer to the bill, admitted the execution of the bonds, and did not controvert the allegation of the loss of them, *and said, that he only wished to be made safe in paying the debt, particularly as his brother Edward had died intestate, leaving several infant children, and little or. no personal property. The cause was promptly heard by consent, on the bill and answer, and the county court decreed that James Kerney should pay the debt, with interest, according to the prayer of the bill. He acquiesced in the decree, and paid the whole debt.
    After the death of James Kerney, namely, in October 1822, his administrator exhibited a bill against the three children and heirs of Edward Kerney, in the superiour court of chancery of Winchester, setting forth the facts above stated, and alleging, that all the bonds executed by Edward and James Kerney to Swearingen, bound the heirs of the obligors; that no person had taken administration of Edward’s estate, but that he left real estate which descended to his heirs: and, accounting for the failure of James, in his lifetime, to assert this claim, by the tender infancy of his brother Edward’s heirs, only one of whom had even yet attained to full age, he praj’ed, that he might - be subrogated to the rights of Swearingen, to whom his intestate had paid the debt due by all the four bonds, and that the same with the interest should be charged on the lands of Edward Kerney descended to his heirs.
    The heirs of Edward Kerney pleaded the statute of limitations; and alleging, that their ancestor left a considerable personal estate, which ought to be first applied to the payment of the debt claimed in the bill, and that his widow had taken possession of the whole personal estate, they insisted, by way of plea, that she ought to be made a party to the suit. And they put in an answer to the bill, in which they said, that they did not admit, that the lost bonds bound the heirs of the obligors, and called for proof of that allegation; and that James Kerney had said, in his lifetime, that he claimed only 600 dollars.
    *The first o± the four bonds was exhibited, and it was in these words: “We promise and oblige ourselves, our heirs &c. to pay or cause to be paid to Samuel Swearingen, the sum of 347 dollars, on or before the 1st April 1804, for value received, as witness our hands and seals the 27th March 1802.” — 'Signed and sealed by Edward Kerney and James Kerney. The record of the suit of Swearingen against James Kerney, in the county court of Jefferson, in which the court decreed that he should pay the amount of the lost bonds, and the receipts for the payment of the debt due by all the four bonds, by James Kerney to Swearingen, were also exhibited.
    Swearingen, the obligee, was examined as a witness for the plaintiff; and he deposed, that the four bonds for 347 dollars each, were all executed to him by Edward and James Kerney, for the payment, by instalments, of the purchase money of land sold by him to Edward; that he lost the last three bonds, stating when and how, and that they had never been found; that he brought the suit against James Kerney, in the county court of Jefferson, because James Kerney questioned the propriety of his paying the lost bonds; that James Ker-ney having previously discharged the first bond, and paid part of the money due on the lost bonds, paid, after the decree in that suit, the whole balance due on the lost bonds.
    Depositions of witnesses were taken and filed by the defendants, to prove that James Kerney had said, in his lifetime, that he had a claim against the estate of his brother Edward, and if his children and heirs would pay him 600 dollars, he should require no more of them, and would acquit them of all further demand; and that he made that proposition to one of his nephews; but it did not appear, that James Kerney ever said, that 600 dollars was the whole amount of his claim.
    In November 1828, chancellor Browne (sitting for chancellor Tucker, the judge of the court, to hear and determine causes in which he had been counsel before his *appointment to the bench) directed, 1. an account of the money paid by James Kerney, as surety for Edward, but instructed the commissioner, in stating the account, not to charge the defendants with any money paid by him on the three bonds alleged to be lost; because the heirs of Edward Kerney, not being parties to the suit of Swearingen against James Kerney in the county court of Jefferson, were not bound by the decree therein, adjudging that James Kerney should pay the debt due on the lost bonds; because it was wrong in James Ker-ney to submit to that decree, since a court of equity will not set up a lost bond against a surety; and because Swearingen was not a competent witness to prove the claim against Edward Kerney’s heirs. 2. An account of the real estate left by Edward Ker-ney, which descended to his heirs, and the value of such part thereof as was now held by them respectively, and if any had been aliened, by which of them, and to whom, when, and for what price, the same had been sold. And 3. an account of the personal estate left by Edward Kerney, which had come to the hands of the defendants, or any of them.
    The commissioner reported, that Edward Kerney died seized and possessed of 165 acres of land; that the widow and two of his heirs had sold 116 acres of it, at 30 dollars per acre, and that by agreement between the vendors and the purchaser, he retained 200 dollars of the purchase money in his hands, to abide the issue of this suit; and that the residue of the land was still held by the other heir, and was of the value of 25 dollars per acre. He returned with his report a deposition, stating- what was the personal estate left by Edward Kerney (which was very trivial), and that none of it came to the hands of the defendants. And he reported, that the amount paid by James Kerney as surety for Edward, exclusive of what was paid on the lost bonds executed to Swearingen, was the amount of the first bond, *which bound the heirs of the obligor; namely, 347 dollars, with interest from the 1st April 1804.
    Chancellor Tucker, refusing to examine the principles of chancellor Browne’s interlocutory decree, pronounced a final decree in conformity with them, wherein the real estate of Edward Kerney descended to the defendants his heirs, was charged with only 347 dollars (the amount of the first bond of Edward and James Kerney to Swearingen) with interest from the 1st April 1804, till paid. The plaintiff appealed to this court.
    Nicholas and Johnson, for the appellant,
    said, they7 could see no reason for the opinion expressed in the interlocutory decree, that Swearingen was not a competent witness ; he had got his money twenty years before, and it was not possible it could ever be recovered back from him, and so he was wholly disinterested. The decree was certainly erroneous, too, in declaring, that a court of equity would not set up a lost bond against a surety; the contrary was well settled. 2 Wash. 140; Underwood v. Staney, 1 Ch. Ca. 77; Sheffield v. Ed. Castleton, 1 Eq. Ca. Abr. 93, pi. 6; Eord Hardwicke’s opinion in Skip v. Huey, 3 Atk. 93; East India Company v. Boddam, 9 Yes. 464.
    Eeigh, for the appellees,
    admitted, that he could not maintain the principles declared in the interlocutory decree, that Swearingen was not a competent witness, and that a court of equity would not set up a lost bond against a surety. But he said, 1. that he had searched in vain, for a case, in which a lost bond had been set up against the heirs of the obligor; and the reason might be, that as the heirs were not bound unless they were expressly natmd, and as in practice (especially, in this country) cases of bonds for money not binding, were as frequent as bonds binding, the heirs of the obligor, it would be dangerous to permit any proof of the obligation of the heirs, but the deed itself. And the present *case seemed to him an example of the mischief of allowing any other proof against the heirs, but the deed itself. Eor he said, 2. there was here, no suSicient proof, that the three lost bonds did expressly bind the heirs of the obligors. Swearingen, the obligee, did not depose that they did; nor did his bill against James Kerney, the surety, in the county court of Jefferson, to set up the lost bonds against the surety, allege that those bonds bound the heirs of the obligors; indeed, such an allegation in that bill, would have been unnecessary and idle. The proof was circumstantial — that, as it appeared that the first of the four bonds which was produced, did bind the heirs of the obligors, and as the other three bonds, which were lost, were executed at the same time, and for instalments of the same debt, therefore it might be inferred, that the lost bonds also bound the heirs. Now, such an inference might be irresistible, if these had all been printed forms of bonds, filled up by the parties, or even if they had been formal bonds with an obligation and condition of defeasance; but they were single bonds, written by the parties for the occasion, and the word heirs might have been inserted in one, and omitted in the others. There was no reason to believe, that the importance of inserting that word, was present to the minds of the parties at the time, or that they were careful that all the bonds should be exactly alike. This word might have been omitted in the lost bonds, through mere inadvertence, and the omission of it would exempt the heirs from the obligation.
    
      
      He pronounced the final decree in the court of chancery.
    
    
      
      See monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
   CARR, J.

The counsel for the appellees, in the argument here, abandoned both the grounds on which the interlocutory decree was founded; and very properly; for nothing can be better settled, than that equity will set up a lost bond against sureties, nor any point clearer, than that Swearingen was a competent witness. His *debt was paid off, under a decree of twenty years standing, and which never could be impeached. The counsel, however, questioned whether equity could charge the heirs of an obligor, upon a lost bond, and said that his research had not enabled him to find a single case in which equity had set up a lost bond against heirs. Believing that I should hardly find, what had escaped the eye of that vigilant counsel, I have not looked for such a case. But taking up the question upon principle, I cannot feel a doubt, that equity has the power, and that it is the duty of her courts to charge the heir upon a lost bond, where-ever there is proof that it bound the heirs, and assets have descended. The right of the ancestor to bind the heir, so far as real assets shall descend, is one of the oldest principles of the common law. The proof in this record satisfies my mind, that the lost bonds did bind the heirs. What is the meaning of the phrase that equity will set up a lost bond, or other instrument? I understand it to mean, that the instrument will be restored to its pristine vigor and power; that the accident will be relieved against; the loss supplied. If so, and if the bond bound the heirs before the loss, it must equally bind them after it is set up, — - after it is found again; otherwise, it is not the same bond. In Field v. Harrison, 2 Wash. 140, president Pendleton said, “It is true a court of equity will set up a lost bond against a surety; but the reason is, that the surety’ is not discharged by the loss of the bond, and the court only relieves against the accident, by’ setting up the evidence of the debt.” Surely, this reasoning applies equally to the heir: he is not discharged by the loss of the bond; and when the evidence of the debt is set up, it is equally’ conclusive upon him, as on the surety. Indeed, the equity of the surety seems to me much the strongest; for he is bound, though he never received a cent, while the heir is- only bound, when, and so far as he has received real assets from the original debtor.

*The case of Bishop v. Church, 2 Ves. sen. 373, is not ad idem with the present case, but I think the principle the same. That was the case of a joint bond, where one obligor died, and the application to equity was, to set up the remedy, confessedly gone at law, against the executor and heir of the deceased obligor: it was objected, in the argument, that when the heir was once clear at law, equity never bound him; but lord Hardwicke said, “As to the heir at law, I am of opinion, that the plaintiff has the same equity against him. In all the cases, where two, their heirs, executors and administrators, are bound in a joint bond, and by the death of one, in the life of the other, the legal lien and action at law have been gone, if a court of equity has allowed the equity, and set up the bond, it has always set it up, not partly only against the personal estate and executor, but against the heir also; because that is a very different case from that which was put, where the heir was not named.” And he referred to several cases, and among others, to Acton v. Pierce, 2 Vern. 480, where A. gave a bond to B'. his intended wife, which being extinguished by the marriage, was, after the death of the husband, set up against his heir.

I am of opinion, that the decree should be reversed, and the cause remanded, with directions to the court below, to enter a decree precisely like the final decree of the chancellor, except that it shall embrace the whole sum paid by the surety.

The other judges concurring, decree reversed, and cause remanded &c.  