remedy at law for want of a due profert.1 In the next place he may come into equity when a deed of land has been destroyed, or is concealed by the defendant; for then, as the party cannot know which alternative is correct, a Court of Equity will make a decree (which a Court of Law cannot) that the plaintiff shall hold and enjoy the land until the defendant shall produce the deed or admit its destruction.2 (a) So if a deed concerning land is lost, and the party in possession prays discovery, and to be established in his possession under it, equity will relieve; for no remedy in such a case lies at law. And where the plaintiff is out of possession, there are cases in which equity will interfere upon lost or suppressed title deeds, and decree possession to the plaintiff; but in all such cases there must be other equities, calling for the action of the court. Indeed the bill must always lay some ground besides the mere loss of a title deed, or other sealed instrument, to justify a prayer for relief; as that the loss obstructs the right of the plaintiff at law, or leaves him exposed to undue perils in the future assertion of such right.5

85. Although upon a lost bond equity will decree payment for the reason already stated, yet it has been said that it will not entertain jurisdiction for relief upon a lost negotiable note, or other unsealed security, so as to decree payment upon the mere fact of loss; for no such supposed inability to recover at law exists in the case of such a note or unsealed contract which is lost, as exists for want of a profert of a bond at law. No profert is necessary, and no oyer allowed at law, of such a note or security; and a recovery can be had at law, upon mere proof of the loss. But then a Court of Law cannot (as we have seen) insist

1 Id. Walmsley v. Child, 1 Ves. 344, 345; Post, § 88.

2 Rex v. Arundel, Hob. R. 108b; 1 Ves. 392.

Walmsley v. Child, 1 Ves. 434, 435. See also Dalton v. Coatsworth,

1 P. Will. 731; Dormer v. Fortescue, 3 Atk. 132.

♦ Dormer v. Fortescue, 3 Atk. 132.

5 See 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ); Id. ch. 3, § 3. See Mitf. Eq. Pl. by Jeremy, 113, 114.

• Walmsley v. Child, 1 Ves. 345; Glynn v. Bank of England, 2 Ves. 38, 41. 7 Walmsley v. Child, 1 Ves. 345; Glynn v. Bank of England, 2 Ves. 38, 41. In Hansard v. Robinson (7 B. & Cres. 90) it was expressly decided that no action would lie by the indorsee of a bill of exchange against the acceptor, where the bill was lost and not produced at the trial, although the loss was

(a) See Worthy v. Tate, 44 Ga. 152.

upon an indemnity, or at least cannot insist upon it in such a form as may operate a perfect indemnity. In such a case therefore a Court of Equity will entertain a bill for relief and payment upon an offer in the bill to give a proper indemnity under the direction of the court, and not without. And such an offer entitles the court to require an indemnity not strictly attainable at law, and founds a just jurisdiction.2 (a)

86. In the cases which we have been considering, the lost note or other security was negotiable. And according to the authorities this circumstance is most material; for otherwise it would seem that no indemnity would be necessary, and consequently no relief could be had in equity. The propriety of this exception has been somewhat doubted; for the party is entitled, upon payment of such a note or security, to have it delivered up to him as voucher of the payment and extinguishment of it; and it may have been assigned in equity to a third person. And although in such a case the assignee would be affected by all the equities between the original parties, yet the promisor may not always, after a great length of time, be able to establish those equities by competent proof; and at all events he may be put to serious expense and trouble to establish his exoneration from the charge. The jurisdiction of Courts of Equity under such circumstances seems perfectly within the principles on which such courts ordinarily proceed to grant relief, not only in cases of absolute loss, but of impending or probable mischief or incon

established to have been after it became due. The ground of the decision was, that by the custom of merchants the acceptor was entitled to the possession of the bill as his voucher for the payment; and the extreme inconvenience of requiring the acceptor to prove the loss, if he should be required so to do, in a suit by another person as holder. The court said the proper remedy was in equity, where an offer of indemnity might be made and enforced.

1 Ante, § 82; 2 Camp. 211; 7 B. & Cressw. 90.

2 Walmsley v. Child, 1 Ves. 344, 345; Teresy v. Gorey, Finch, R. 301; s. c. 1 Ves. 345; Glynn v. Bank of England, 1 Ves. 446; 2 Ves. 38; Mossop v. Eadon, 16 Ves. 430, 434; Chitty on Bills (8th edit. 1833), p. 290; Bromley v. Holland, 7 Ves. 19 to 21; Davies v. Dodd, 4 Price, 176; s. c. 1 Wils. Exch. R. 110.

8 Mossop v. Eadon, 16 Ves. 430, 434; see Chitty on Bills (8th edit. 1833), p. 291, note.

↑ Hansard v. Robinson, 7 Barn. & Cressw. 90; Story on Promissory Notes, §§ 106 to 116, §§ 243 to 245, § 445.

(a) See Savannah Bank v. Haskins, 101 Mass 370; ante, p. 87, editor's note.

venience. And a bond of indemnity, under such circumstances, is but a just security to the promisor against the vexation and accumulated expenses of a suit.1 (a)

87. It is upon grounds somewhat similar that Courts of Equity often interfere, where the party, from the long possession or exercise of a right over property, may fairly be presumed to have had a legal title to it, and yet has lost the legal evidence of it, or is now unable to produce it. Under such circumstances equity acts upon the presumption arising from such possession as equivalent to complete proof of the legal right. Thus where a rent has been received and paid for a long time, equity will enforce the payment, although no deed can be produced to sustain the claim, or the precise lands out of which it is payable cannot from confusion of boundaries, or other accident, be now ascertained.2

88. In the cases of supposed lost instruments, where relief is sought, it has been seen that, as a guard upon the preliminary exercise of jurisdiction, an affidavit of the loss of the instrument, and that it is not in the possession or power of the plaintiff, is indispensable to sustain the bill. (b) And in order to maintain the suit, it is further indispensable that the loss, if not admitted by the answer of the defendant, should at the hearing of the cause be established by competent and satisfactory proofs. For the very foundation of the suit in equity rests upon this most material fact. (c) If therefore the plaintiff should fail at the

1 See Hansard v. Robinson, 7 B. & Cressw. 90; East India Company v. Boddam, 9 Ves. 468, 469; Davies v. Dodd, 4 Price, R. 176.

21 Fonbl. Eq. B. 1, ch. 3, § 3, and note (g); Steward v. Bridger, 2 Vern. 516; Collet v. Jaques, 1 Ch. Cas. 120; Cocks v. Foley, 1 Vern. 359; Eton College v. Beauchamp, 1 Cas. Ch. 121; Holder v. Chambury, 3 P. Will. 255; Duke of Leeds v. Powell, 1 Ves. 171; Duke of Bridgewater v. Edwards, 4 Bro. Parl. C. 139; Duke of Leeds v. New Radnor, 2 Bro. Ch. C. 338, 518; Benson v. Baldwin, 1 Atk. 598; Cooper, Eq. Pl. 130.

East India Co. v. Boddam, 9 Ves. 466; Cooper, Eq. Pl. 125, 126.

Stokoe v. Robson, 3 Ves. & B. 50; Smith v. Bicknell, Id. note.; Cookes v. Hellier, 1 Ves. 234, 235; Walmsley v. Child, 1 Ves. 344, 345; Cooper, Eq.

(a) Gordon v. Manning, 44 Miss. 756, 762.

(b) Hoddy v. Hoard, 2 Ind. 474. But see Graham v. Hockwith, 1 A. K. Marsh. 424; Purviance v. Holt, 3 Gilm. (Ill.) 395.

(c) Finding the instrument after suit will not defeat jurisdiction. See Crawford v. Summers, 3 J. J. Marsh. 300; Miller v. Wells, 5 Mo. 6; Hamlin, 3 Jones, Eq. 191.

hearing to establish the loss of the instrument, or the defendant should overcome the plaintiff's proofs by countervailing testimony of its existence, the suit will be dismissed, and the plaintiff remitted to the legal forum.1 (a) But if the loss is sufficiently established when it is denied by the defendant's answer, the plaintiff will be entitled to relief, although he may have other evidence, competent and sufficient to establish the existence and contents of the instrument, of which he might have availed himself in a Court of Law. For if the jurisdiction once attaches by the loss of the instrument, a Court of Equity will not drive the party to the hazard of a trial at law when the case is fit for its own interposition and final action, upon a claim to sift the conscience of the party by a discovery.

89. We have thus far been considering cases of accident founded upon lost instruments. But there are many other cases. of accident where Courts of Equity will grant both discovery and relief. One of the earliest cases in which they were accustomed to interfere was where by accident a bond had not been paid at the appointed day, and it was subsequently sued; or where a part only had been paid at the day. This jurisdiction was afterwards greatly enlarged in its operation, and applied to all cases where relief is sought against the penalty of a bond, upon the ground that it is unjust for the party to avail himself of the penalty when an offer of full indemnity is tendered. The same principle governs in the case of mortgages, where Courts of Equity constantly allow a redemption, although there is a forfeiture at law. (b) And it may now be stated generally that Pl. 239; Clavering v. Clavering, 2 Ves. 232; East India Co. v. Boddam, 9 Ves.

466.

1 See Jeremy on Eq. Jurisd. 359, 360, 361; Cooper, Eq. Pl. 238, 239; Mitf. Eq. Pl. by Jeremy, 222; Armitage v. Wadsworth, 1 Madd. R. 192 to 194; 1 Fonbl. Eq. B. 1, ch. 3, § 3, note (h).

21 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ), p. 17. But see Ante, § 83, p. 91, and note 3.

3 Cary's Rep. 1, 2; 7 Ves. 273. See also Harg. Law Tracts, pp. 431, 432, Norburie on Chancery Abuses.

* Seton v. Slade, 7 Ves. 273, 274; Lenon v. Napper, 2 Sch. & Lefr. 684, 685; Com. Dig. Chancery, 4 A. 5; Mitf. Pl. Ch. by Jeremy, 117, 130; Cooper, Eq. Pl. 130, 131; 2 Fonbl. Eq. B. 3, ch. 3, § 4, and notes. Lord Redesdale

(a) As where a bond has been destroyed or suppressed by the obligee. Davies v. Davies, 6 Ired. 418.

(b) Doty v. Whittlesey, 1 Root, 310; Crane v. Hancks, Ib. 468; Bostwick v. Stiles, 35 Conn. 195.

where an inequitable loss or injury will otherwise fall upon a party from circumstances beyond his own control, or from his own acts done in entire good faith, and in the performance of a supposed duty, without negligence, Courts of Equity will interfere to grant him relief.

90. Cases illustrative of this doctrine may easily be put. In the course of the administration of estates, executors and administrators often pay debts and legacies upon the entire confidence that the assets are sufficient for all purposes. It may turn out, from unexpected occurrences, or from debts and claims made known at a subsequent time, that there is a deficiency of assets. Under such circumstances they may be entitled to no relief at law. But in a Court of Equity, if they have acted with good faith and with due caution, they will be clearly entitled to it upon the ground that otherwise they will be innocently subject to an unjust loss from what the law itself deems an accident.1 Indeed it has been said that in England no case at law has yet decided that an executor or administrator, once become fully responsible by an actual receipt of a part of his testator's property, for the administration thereof, can found his discharge in respect thereof as against a creditor seeking satisfaction out of the testator's assets, either on the score of inevitable accident, or destruction by fire, or loss by robbery or the like, or of reasonable confidence disappointed, or of loss by any of the other various means which afford an excuse to ordinary agents and bailees in cases of loss without any negligence on their part, and that Courts of Law are disinclined to make such a precedent.

If

puts the relief in cases of this sort upon the ground of accident. His language is, 'In many cases of accidents, as lapse of time, the Courts of Equity will also relieve against the consequences of the accident in a Court of Law. Upon this ground they proceed in the common case of a mortgage, where the title of the mortgagee has become absolute at law, upon default of payment of the mortgage money at the time stipulated for payment.' Mitf. Eq. Pl. by Jeremy, 130. I apprehend that this is not the true ground; but that it turns upon the construction of the contract being a mere security, and time not being of the essence of the contract, and the unconscionableness of insisting upon taking the land for the money. Seton v. Slade, 7 Ves. 273, 274; Lenon v. Napper, 2 Sch. & Lefr. 684, 685; Post, §§ 1313, 1314, 1316.

1 Edwards v. Freeman, 2 P. Will. 447; Johnson v. Johnson, 3 Bos. & Pull. 162, 169; Hawkins v. Day, Ambler, R. 160; Chamberlain v. Chamberlain, 2 Freem. 141. But see Coppin v. Coppin, 2 P. Will. 296, 297; Orr v. Kaines, 2 Ves. 194; Underwood v. Hatton, 5 Beavan, R. 36.

2 Crosse v. Smith, 7 East, R. 246; Johnson v. Johnson, 3 Bos. & Pull. VOL. I.-7