
    Irwin vs. Planters Bank.
    Courts ’of chancery take jurisdiction to give relief in cases of lost or dfeá-troyed bonds, notes, &c., on the ground of being able to furnish more adequate indemnity to the defendant than courts of law.
    Wherethe issuance of certain bank notes, alleged to have been destroyed by fire, were not directly traced to the bank of which they purported to be the notes, and no description of them by .date or letter given: Held, that it was not possible to give the defendants adequate indemnity, and therefore no relief could be decreed to complainant.
    On the 22d March; 1839-, Joseph M. Irwin, á citizen of Davidson county; filed his bill in the chancery court at Franklin, in the middle division of thé State, against the -president and directors of the Planters Bank of Tennessee. The bill alleges: 1st; That complainant; Joseph M. Irwin, was the owner of the steamboat Cumberland; that the boat by accident at the wharf of New Orleans, in the year 1838, took firé and was consumed; that in it wás also consumed six notes, issued by the president and directors of the Planters Bank of Tennessee, each for fifty dollars, signed by M. Watson, -president and N. Hobson, cashier, and made payable at the bank in Nashville; the numbers and dates of said notes were not known. 2d. That demand of payment of said notes had been made at the bank in Nashville, and that the -payment of them was refused. 3d. That the complainant tendered through the court such indemnity to the defendants ás the court should direct against the ultimate return of said notes to the bank for second payment.
    The defendants in their answer, under the common seal of the corporation, sworn to by M. Watson, president,state that they know nothing in regard to the destruction 0^ the notes, and call for proof; that it is true that the affidavit of Andrew Hamilton, the clerk of the steam-boat Cumberland at the time it was burnt, was laid before the president and directors of the institution, stating that six notes, issued by the Planters Bank, payable at Nashville, and signed by M. Watson, president, and N. Hobson, cashier, were consumed by the burning of said boat, but that said affidavit did not state the number or dates of said notes, to whom they were made payable, nor any description whatever by which the notes could be identified by the bank, and that they refused the payment thereof; that the defendants had issued sjx thousand eight hundred notes for fifty dollars each, payable at Nashville, of different dates, and of different marks, numbers and letters, and payable to different persons or bearers, all signed ,by M.-_ Watson, president, and Nicholas Hobson, cashier, and that with so vague a description they could not pay them without subjecting the institution to the grossest frauds; that said notes might have been stolen or otherwise saved from destruction in the conflagration; that the bank, for the purpose of defeating frauds and doing justice, had kept a register in which a specific description of all notes issued were marked down; but that under the existing circumstances if was not possible for the complainant to furnish the bank with a safe and adequate indemnity against the return of said notes for second payment, as the complainant could give no adequate description of the notes alleged to be consumed by which the same could be described in a bond of indemnity, &c. &c. There was a general replication filed; the allegations- of the bill were fully proven but the notes were not identified by the proof further than as stated in the bill.
    On the 12th day of November, 1839, the cause came on to be heard before chancellor Bramlett; he decreed that the complainant recover of the defendant the sum of three hundred dollars, with interest from the time of the filing of "the bill, and that complainant pay the costs of the suit and give the defendant a bond with real security, to be approved by the clerk and master, that if it shall appear, upon the winding up the concerns of the bank, that said six notes or any of them were not destroyed, but shall come against the said bank, and the bank shall be compelled to take them up, that the complainant shall refund to the bank the said sum of three hundred dollars, or so much as shall come back, with interest from the time interest is calculated in the decree &c. From this decree the defendants appealed.
    
      Cook, for complainant.
    1. The jurisdiction in this case in equity is founded upon that head of equity called accident, and is because by accident the party is deprived of his ac-. tion at law, or is embarrassed in his legal remedy. Cooper’s Eq. 129, 130: 9 Yes. 400, 407: 7 Yes. 19, 20: 7 Yes. 249, Kemp vs. Pryor: 1 Story’s Eq. 100 to 105: Davis vs. Dodd, 4 Price, 170. The jurisdiction attached at first as to bonds, because proferí could not be made. The jurisdiction being established as to them it was afterwards extended to notes and bills of exchange. 1 Story, 101, note: ex parte, Greenway, 6 Yes. 812: 2 Sim. 285: 3 J. J. Marshall, 73: 5 Monroe, 252: 3 J. J. Marshall, 300: 4 Rand. 541: 2 Bibb, 556: 3 Bibb, 528: Campbell vs. Sheldon, 13 Pick. 8: 2 Harrison’s Dig. 68. By our law proferí isas necessary-in declaring on a note or bill of exchange as on a bond; and therefore the ground of jurisdiction in both cases stands upon the same principle. No action at law could be maintained in this case, because the notes cannot be described by date or by number; or if described, could not be sworn to as to date or number. The remedy in equity is more beneficial to the defendant than at law, because at law an affidavit of loss is sufficient; in equity the complainant must prove the loss or destruction alleged in his bill.
    2. The complainant tenders indemnity to the defendant against loss. The indemnity which a court of law could take would be limited to one point, to wit, that the notes should not come against the bank. It is true, the evidence of the destruction of the notes and that they were notes issued by the Planters Bank being as clear as any fact can be made by human testimony, the indemnity required in this case should be slight, yet in a court of equity an indemnifying bond could be taken which would embrace any case that could arise. The bond could be so shaped that if it subsequently appeared that the witness proving the loss had perjured himself, as if the boat was not burnt or no notes were in the desk or the notes were taken out by the witness or by other persons, a recovery could be had. Indemnity might also be given that at the winding up the affairs of the bank six fifty dollar bills should not come against the institution.
    
      
      Campbell, for defendant,
    contended that courts of chancery could not give relief in cases of alleged loss of bonds or other instruments of writing except in those cases where they could provide amply for the safety of the debtor at the time they were enforcing payment of the bond or writing. He took the safety of the debtor to be the governing principle in such cases. • In this case thousands of notes such as are described in the bill of complainant have been issued by the bank, distinguished from each other only by numbers or by less important distinctions. The complainant does not attempt to describe the bills in such a way as to distinguish them from six thousand others. It is not possible in such a case to give an adequate indemnity. Therefore this court should not act,
    When the defendants issued these notes it became a part of the contract that the holder of them could receive payment therefor upon condition that he delivered them up to the bank. Byles on Bills, 213. The defendants did not stipulate to pay them upon any other condition than that of delivery of them; yet the defendants are now requested to dispense with this condition of their contract, and receive in lieu thereof the affidavit of some one that the notes are destroyed. This is an unauthorized variation of the contract of the parties which, if sustained, would lead to the most extensive frauds upon all the banking institutions of the State. If a court of equity, on the ground of accident, by the exercise of her extraordinary powers, should declare that the defendants should take in lieu of the presentation of the notes testimony of their destruction, still such a power should not be used in any case where the complainant could not place the defendant in as good a condition as if defendant had the possession of the note or notes- This is .not possible in the present case.
    ' Mr. Campbell cited and commented on the following authorities: Davis vs. Dodd, 4 Taunton, 608: 7 Barn, and Cress. 90: 9 D. and R. 860: Pierson vs. Hutchison, 2 Camp. 211: 6 Esp. 126.
   Reese. J.

delivered the opinion of the court.

This suit is brought to recover from the defendants the value of six fifty dollar notes, which were the property of the plaintiff, and which are alleged to have been issued by the defendants, and to have been destroyed on board the steamboat Cumberland when that boat was consumed by fire at New Orleans in 1838. There is in the bill no description of the notes by date, number or letter.

The defendants allege in their answer that they have no Imowledge or belief on the subject of the notes, or their loss or destruction; that they keep a register of the notes issued by them, specifying the dates, numbers and letters, and to whom payable; and that they have issued upwards of six thousand of the value of fifty dollars each, of varying dates, numbers, and letters, some made payable to bearer and some to individuals, and they could not safely pay claims such as that of the plaintiff without indemnity; and that from the number of notes issued by them of the same amount, they could not, without a specific description of the notes alleged to have been lost, be indemnified. There is but one witness, the clerk of the boat at the time of its destruction. He states that he had locked up in the desk in the clerk’s room six fifty dollar notes, signed by the president and cashier; that he does not remember the dates, numbers or letters, for he did not notice them very particularly; he believes the signatures to have been genuine; has deposited notes in the bank and had received notes from the bank, and is acquainted with the hand-writing of the president and cashier. As to the loss and destruction, he says he removed the iron chest, and before he could return to remove the desk he was intercepted by the fire, and the desk and its contents were consumed with the boat. Two questions have been discussed in the present case: first, as to grounds of jurisdiction upon which a court of equity proceeds in granting relief in cases of lost bonds and other instruments. We take it that the jurisdiction in chancery had its origin in the fact that as at law proferí must have been made, and in case of a lost bond could not be made, the court interposed on the ground of the accident; and when afterwards courts of law permitted the proferí in such cases to be dispensed with, courts of chancery doubted whether courts of law, according †0 course 0f their proceeding, could legally, give indemnity at all, and if they could, whether they could make that indemnity adequate and ample; and they retained and continued to exercise the jurisdiction upon that ground. We have no doubt of our jurisdiction in a case of this description in general; but the present ground of that jurisdiction, the power to grant indemnity when necessary, is said, secondly, practically to have failed in the present case; and that we think is so. The indemnity proposed by the chancellor, namely, that if, upon winding up the affairs of the bank as many as six fifty dollar notes should not be missing, is upon the slightest reflection manifestly illusory. But it is said as the notes were destroyed no indemnity is necessary; and this is true, if the notes were certainly genuine, and certainly destroyed. Here the bank instead of having the notes inspected by its officers to attest them genuine, is asked to rely upon the judgment of a stranger casually exerted and it may be imperfectly remembered; instead of having the notes delivered up to them, they have to rely upon the same testimony for the fact of their destruction.

We are of opinion then that where there is no testimony clearly tracing the notes to the bank, and identifying them as having been issued by the bank, there must be such certainty of description as will enable the bank to see that it has issued such notes, and as will enable this court to extend an adequate indemnity to the defendants. We can imagine cases in which, without such specific description, the notes being certainly identified and traced to the bank, an action at law might be maintained, possibly a suit in this court; but this case presents neither the one aspect nor the other which we have supposed necessary to ground the relief. We therefore dismiss the bill, but without costs.  