
    WILLIAM DAVIS vs. THOMAS DAVIS & AL.
    Although a Court of Equity assumes jurisdiction upon lost bonds, upon the grounds of the oath of the party and the indemnity decreed, yet, where the bond has been destroyed or suppressed by the obligee, no relief will be given.
    The case of Armistead v. Bozman, 1 Ire. Eq. 117, cited and approved.
    Cause removed from the Court of Equity oí Robeson County at the Fall Term 18 i5.
    
      John Council died intestate, in the year 1820, in Robeson County, and at November term of that year administration of his estate was granted by the County Court to Thomas Davis and John B. Johnson. The grant of the administration is entered on the minutes of the Court; and therein it is stated, further, that they entered into an administration bond in. the sum of $10,000, with Jesse Jackson, John Currie, Willis Council and William Wilkinson, as their sureties.
    The bill is brought by the next of kin of the intestate; against the said administrators and the said sureties, except William Wilkinson, who died and whose administratrix is a party defendant. It was filed in 1840 and states, that in 1333, the said administrators had wasted the assets of the intestate, and that, in order to. recover the sums- due to them respectively, the next of kin instituted a.n action on the administration bond against the. obligors therein; and that, pending the action, the bond, in some manner became lost or mislaid, and that, being unable to establish the loss before the jury, they were non-suited in the Spring of 1840. The'bill states, that the said bond was duly executed by all the said parties, and that, the plaintiffs have been unable, after diligent search by the Clerks of the Courts, to find it, or to learn what has become of it; and the prayer is for a discovery or relief by having an account of the estate taken, &.c., and decree for what may be found due to them against the principals and their sureties. The bill was vetified by the oath of one of the plaintiffs.
    The bill was taken pro confesso against all the defendants except Willis Council and the administratrix, of. Wilkinson. The. former denies,, that he- executed .such a bond, as far, as he. can, recollect:. He. admits,.that, one of the administrators applied to him to,becom.e.his;sucety/; hut.he says,, that he became much, intoxicated,, and1 has no recollection or belief, that he signed: the bond; jfe states farther, that he has understood that the bond had blanks in it, which rendered it ineffectual» and that they were afterwards filled up by one of the plaintiffs or at his instance; and he insists for that reason, that the bond, if executed, was not obligatory. The answer further states, that the defendant believes, the plaintiff William Davis, who married the intestate’s widow, destroyed the said bond or suppresses it in order to conceal its defects.
    The defendant, Mrs. Wilkinson, has no knowledge on the subject and leaves the plaintiffs to their proofs.
    
      Strange, for the plaintiff.
    
      Badger and W. Winslow, for the -defendants.
   Ruffin, C. J.

The evidence is entirely satisfactory upon the point of the execution of the administration bond, by the several persons stated in the bill, and the minutes of the Court. The Clerk of the Court says, he has no doubt it was duly executed and was payable to the Justices of the County Court, as that was then the form used in the Court. He states likewise, that while the suit at law was pending, Davis and he were looking at the bond, when Davis called his attention to the circumstance, that the names of the obligors, who had executed the bond, were not inserted in the body of it, and that he, the witness, then wrote their names in the bond, considering it his duty to do so. As a security to the present plaintiffs the instrument cannot be affected by that act of the Clerk, who was a stranger to them. Besides, if the Clerk had destroyed the bond, or if it were originally defective, the • plaintiffs would still be relieved in this Court to the extent, to which they could have remedy, on the bond at la\V, if it were valid and in existence. Armstead v. Bozman, 1 Ire. Eq. 117.

Thei'e appeared upon the evidence at the heai'ing some, though not very strong, cause to suspect, that the plaintiff. Davis, might have suppressed the bond. Although the jurisdiction of this Court upon lost bonds is assumed upon the grounds of the oath of the party as to the loss and of the indemnity decreed, as explained in the case of Fisher v. Carroll, at this term, yet we conceive the Court would not be bound nor at liberty to help an obligee, if it should appear affirmatively, that, instead of losing the bond, he had destroyed or suppressed it. An enquiry was therefore directed on that point; and it has resulted in satisfying the Court, that there is no just reason to impute to that or either of the plaintiffs the charge of destroying or concealing the instrument, but that it has been in fact lost or mislaid — the present and late Clerks having stated, that they were unable to find it in the office and had no knowledge where it is.

It must be declared, therefore, that William Wilkinson and the other defendants duly executed the administration bond in the penalty of of $10,000 and that, in consequence of its being lost, the plaintiffs are entitled to relief therein against the obligors in this Court for the sums due to them as next of kin of the intestate, within the penalty of the bond. And it must be referred to the Clerk to enquire, what sums may be due to the plaintiffs respectively in the premises.

Per Curiam.

Decree accordingly.  