
    James B. Truly et al. vs. John Lane et al.
    A court of equity has jurisdiction of a bill to recover of the maker the amount of a lost note; but it seems the court will require a bond of indemnity from the complainant not only against the note itself, but also against the damages and accumulated expenses of another suit.
    Where a bill is filed to recover the amount of a lost note, the chancellor may direct an issue to be tried by a jury to ascertain the fact of loss.
    Where, in a bill to recover the amount of a lost note, no objection was made in the court below before the hearing, of a defect in parties, it is too late to urge that defect in the high court.
    The court of chancery has power to allow amendments of the pleadings at any stage in the progress of the cause; such amendments are in his discretion,, and when made will not be inquired into by this court.
    On appeal from the decree of the superior court of chancery ;• Hon. Robert H. Buckner, chancellor.
    John Lane and John A. Lane, partners, under the style of J. & J. A. Lane, filed their bill in the superior court of chancery, against James B. Truly, Richard Harrison, Philip O. Hughes, and Thomas Hinds; charging that in the latter part of 1833 or early part of 1834, they were the holders by in-dorsement of a note for nine hundred and eight dollars, made by Truly, Harrison, John W. Piper, Philip O. Hughes, Thomas Hinds and Abraham Maybury, payable to John Buel, and by him indorsed, dated the 4th day of January, 1833, and due on the 1st of January, 1835. That early in the spring of 1834, their store and counting-house was consumed by fire; and the note was in an iron safe in their counting-room, and also consumed ; after the maturity of the note, on the 2d of March, 1835, they made affidavit of the ownership and burning of the note, and called on the makers for payment, but all of them being securities, except Truly, refused to do anything, and referred them to him, and he being insolvent, would not speak seriously of the matter; they then,put the note into the hands of an attorney, who commenced suit, but before the case came on, he died, and another attorney, who was counsel for defendants, became his administrator, and became possessed of the papers relating to the suit, and when it was called, suffered a nonsuit. The complainants then employed other counsel, who brought suit upon the' note, but for want of testimony were compelled to suffer a nonsuit. Complainants say they are informed that defendants deny the existence of any such note, but admit the existence of a similar note for $809, or eight hundred and eighty dollars, or some other sum ; that they were perfectly willing to accept such sum as defendants might say was the true amount; but the defendants positively refused to settle on any terms for any sum; that they do not know of any evidence by which they can prove the existence of the note, and that a discovery is necessary to ascertain, by the answer of the defendants, its existence. They therefore call upon defendants to answer the allegations of the bill, and propound special interrogatories. They pray a decree that the defendants pay complainants such sum of money as may be ascertained' to be due to complainants, and for execution therefor, upon their giving such bond for indemnifying as the court may require; and for general relief. •
    The defendant, Truly, answered and combined with his answer a general demurrer; he says he does not know or admit that complainants ever became the holders by indorsement of such a note, but expressly denies the same to be true; he denies that such note was burned by fire, for none .such ever existed ; denies the truth of the affidavit charged by the bill as having been made of the burning of such note; he admits that two suits at law had been instituted against him and his co-defendants by complainants, and the same being groundless, they were forced to submit to nonsuit; he denies the existence of such note, and does not admit the existence of a similar note for $809 or $880, as belonging to complainants, or for any other sum. He admits that in January, 1833, he and others as indorsers, or securities, he does not recollect which, executed to one John Buel their promissory notes, the first for $908, payable in 1834, the second for $809, payable in January, 1835, and the third for $908, payable in January, 1836. That he believed that all of the notes have been paid — he is confident that two of them have been paid; he does not know or believe such note was assigned to complainant or destroyed by fire, and if they ever held such note, he requires full proof, and resists any decree against him; he says that said claim is stale, and if such ever existed, which is not admitted, and if any cause of action ever accrued to complainants, it accrued at the time of the supposed burning, since which time more than six years had intervened prior to the institution of this suit, and he pleads and relies upon the statute of limitations in bar of the suit, and insists if the complainants had in law any right of discovery, they should have applied for it on the equity side of the circuit court where he had on previous occasions been impleaded on the same demand.
    The defendants, Hughes, Hinds, and Harrison, severally answer and demur; they deny, in the same manner with their co-defendant Truly, the possession, ownership or destruction of said note by fire; they admit that complainant called upon them, alleging the loss of such note, and they refused to acknowledge any accountability, &c. That some time in the year 1833, they became bound as the security of Truly, together with others, in three promissory notes, the amount of which were about 8 or 900 dollars each, payable at periods of one, two, and three years, but their precise amounts or dates, or days of payment, they do not recollect or know; they know nothing of the payment or non-payment of said notes; they have uniformly heard that two of said notes were paid, which two they do not know; they have also heard that the other was paid, and that it was not paid — which was true they do not know, and require full proof; they do not recollect or know whether the note was a joint or indorsed one; they rely upon the statute of limitations.
    The deposition of James G. Mayfield, which was the only one taken, was in substance, that he had seen a note, drawn by James B. Truly and the other defendants named in the interrogatory to him, in favor of John Buel; he could not say precisely whether the amount of it was nine hundred and eight or eight hundred and nine dollars, but he was positive as to its being for one of these sums; the note was dated on the 4th day of January, 1833, and payable 1st day of January, 1835.
    At the time he last saw the note, it was held by J. & J. A. Lane, in Vicksburg, and was burnt with their books and papers on the 10th of February, 1834, when their storehouse was burned down. J. &. J. A. Lane were the just owners of the note at the time it was burnt, and still were the rightful claimants of its amount; unless they have transferred it since, which deponent believes they have not done. The note was indorsed by John Buel; he did not know the signatures on said note with the exception of John Buel, which he knew to be genuine; he was at the time in the employ of complainants, and had been from 1831 up to 1835, and knew that J. &. J. A. Lane sold to Buel a piece of property, eight miles from Vicksburg, known as the Mount Albon tavern, and received three notes, all drawn by the same parties, the note described in 1st interrogatory, being one, the other two were sued on and collected in the Jefferson circuit court; all three of the notes were indorsed by Búel; he had free access to Lane’s books and papers, and frequently saw this note, with the others mentioned above.
    In answer to cross-interrogatories, he stated that he never saw either of the parties write or sign their names except Buel; “ he frequently saw the note; it was in the store-house previous to the fire, and all their notes, books, accounts, and some money were burnt; he infers this note was among the rest.”
    The chancellor directed an issue to be tried by jury, on the following points :
    1. Whether defendants made and executed to John Buel, such a promissory note, as that set forth in complainant’s bill.
    
      2. Whether the complainants were the bona fide holders of such note, as averred in their bill, and entitled to the recovery thereof.
    
      3. Whether the note has been lost or destroyed, as averred in the bill of complaint. And referred the same to be tried by a jury in the circuit court of Adams county. Upon which issue the jury returned the following verdict:
    “ We of the jury find that the said defendants did make and execute to John Buel a note for the sum of eight hundred and nine dollars, dated January 4th, 1833, and payable on 1st day of January, 1835; that the complainants were bona fide holders of said note, and entitled to recovery thereof, and that said note has been lost or destroyed, as averred in the bill of complaint.”
    On the return of this verdict, the complainants filed their amended bill, in which they state the filing of the original one, against the defendants to recover the sum due on a lost note, which in the bill is described as a joint note, made by the defendants and others for the sum of nine hundred and eight dollars, dated January 4th, 1833, payable 1st January, 1835. At the time of filing which original, they believed they described the note correctly, which was done from memory, but since which time, more particularly since last term of this court, they have become satisfied the note was for the sum of eight hundred and nine dollars, instead of $908, and prays for the same relief.
    Afterwards, the case being submitted for private hearing, the court decreed in favor of complainants, and referred the case to a master to compute the interest on the note for $809, who reported the balance or amount due, at $1456 20, which was confirmed. Upon which the court entered a final decree in favor of the complainants for the amount reported against Howell Hinds, administrator, &c. of Thomas Hinds, deceased, out of the goods and chattels, &c. of Thomas Hinds, and James B. Truly, Philip, O. Hughes and Richard Harrison, to be paid within ten days, or that they have execution therefor.
    A bond of indemnity, with the following condition, is filed in the record, viz.
    
      “ The condition of the above obligation is such, that whereas the above-bound obligors, by the order and decree of the superior court of chancery of the state of Mississippi, sitting at Jackson, at the December term thereof, in the year eighteen hundred and forty-four, have recovered of and from the said defendants, — Howell Hinds, as administrator, &c. of Thomas Hinds, deceased, James B. Truly, Richard Harrison, and Philip O. Hughes, — the sum of one thousand four hundred and fifty-six dollars twenty cents, with eight per cent, thereon from the 14th day of the present month, until paql, on account of a certain promissory note for the sum of eight hundred and nine dollars, dated the 4th day of January, 1833, and payable on the 1st day of January, 1835, made by James B. Truly, Richard Harrison, Thomas Hinds, John W. Piper, Philip O. Hughes, and Jesse Mayberry, in favor of John Buel; which note is represented to have been indorsed by said Buel to J. & J. A. Lane, and to have been destroyed by fire. Now if the said obligees shall pay the said sum of money mentioned in said decree, and the said obligors shall at all times thereafter save harmless and indemnify the said obligors from all suits, claims, demands and damages suffered or to suffer on account of said promissory note, then the above obligation to be void, otherwise to remain in full force and virtue.”
    The defendants appealed from the decree of the chancellor.
    
      Sanders and Price, for appellants,
    insisted,
    1. That the chancery court had no jurisdiction of the bill. On this point they cited H. & H. 606; Barstow’s Eq. 56 ; 1 Story Eq. 84, 85; 2 Story Eq. 700, § 1483; 704, § 1488; 2 Story Eq. 2, § 690.
    2. That the bill being for discovery and relief both, was de-murrable, in not bringing all the parties before the court; that the representatives of Piper and Mayberry were not parties to the suit below.
    3. The bill being for discovery, the court could not grant relief that conflicted with the answers. 2 Story Eq. 2, § 690.
    4. That the direction of the issue to a jury, on the coming in of an answer to a bill of discovery, to ascertain the truth or falsehood of the answer, was erroneous.
    
      5. That the amendment filed after the verdict was rendered, was irregular.
    
      Montgomery and Boyd, for appellees, in reply.
    1. The jurisdiction of a court of chancery, in cases of lost notes, is unquestioned; the only doubt in the law-books is as to the jurisdiction of a court of law.
    2. That all lawyers were agreed that a court of chancery had power to direct an issue to ascertain a fact upon which he doubted ; and that it was allowed by statute H. & H. 510, § 27.
    3. That the amendment of the bill made below was not material, or necessary; the original bill was sufficient of itself; that the amendment was made for the protection and safety of all parties, to make the bill correspond with the verdict; and the court had the power to make it.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed in the superior court of chancery, for the discovery of the amount of a note alleged to have been destroyed by fire, and for a decree for such amount as might be found due.

The material point made in the defence is, that there is an adequate remedy at law, and that therefore a court of equity has no jurisdiction.

The cases upon this point are not uniform, and are involved in some degree of embarrassment. In the case of The East India-Company v. Boddam, 9 Ves. 468, a party was permitted to recover in equity upon a lost bond. Jurisdiction was enter-tertained, not only because no profert could be made of the lost instrument, but because the defendants had a right to indemnity not only against the bond, but against all costs and damages to which they might be subjected in another suit. In Mossop v. Eador, 16 Ves. 430, a bill was dismissed which was filed to coerce payment of a promissory note which had been lost. But in Hansard v. Robinson, 7 Barn. & Cress. 90, it was held that the indorsee of a lost bill of exchange could not recover upon it, in a court of law, and that the remedy was in equity. In Davis v. Dod, 4 Price Ex. Rep., it was holden that the in-dorsee of a lost bill might recover upon it in equity. The chief baron, Richards, said, “It does not become me to say whether the plaintiff has or has not any remedy at law, but even though he should have such a remedy, he has also a remedy here, and if he had commenced an action at law, the defendant might have restrained him by injunction from proceeding, and for this obvious reason, because a court of law could not compel him to give security, which a court of equity would hold he was entitled to.” He also applies the rule as well to instruments not negotiable, as to those which are. In McCartney v. Graham, 2 Simons, 285, it is said that Mossop v. Eador is overruled in Hansard v. Robinson, and a bill was sustained to recover on a lost bill of exchange. Judge Story is in favor of the jurisdiction in equity, as well in regard to instruments not negotiable, as those which are, not only because it can require indemnity against the instrument itself, but also against the damages and accumulated expenses of another suit. Eq. Jur. §§ 85,86, p. 103.

From this view of the authorities, we are of opinion that the jurisdiction in equity is established and ought to be sustained. The bond of indemnity in this case was of the required character.

The objections taken to the proceedings in the chancery court are not valid. The directing an issue to be tried by a jury was not erroneous ; the chancellor had a right to adopt that mode to inform his conscience. The objection to the want of other parties was not urged before the hearing; it is too late, in a case like this, to rely upon it now. The amendment of the bill after the verdict is no cause for reversing; the amendment itself was unnecessary. But amendments are discretionary with the court below, and this court does not attempt to control the ■exercise of that discretion.

The decree is affirmed.  