The plaintiff had some justices' judgments against one Underwood, stayed by the defendant Carroll, and amounting to $628.70, principal and interest. In October, 1841, executions issued and were levied upon a barouche, the property of Underwood, which was sold, and purchased by the plaintiff at the price of $94. The executions were also levied upon the property of Carroll. Five horses were sold, and bought by the plaintiff at the price of $18, and the officer was proceeding to sell other property, when the defendant Carroll delivered to the plaintiff a note for $763, executed by himself and the other defendant Sellers, which was accepted by the plaintiff in full satisfaction for the property purchased and of the judgments which he held against (486) Underwood and Carroll. The note was due on 13 October, 1841.
The bill alleges that the note has been lost by accident; and the prayer is that the defendants be decreed to pay the principal and interest, upon being indemnified. There is an allegation of an offer of indemnity before the bill was filed, and it is filed upon oath.
The defendants deny the loss of the note. They admit its execution and contents, and rely upon the ground that it was given for a usurious consideration. They allege that before the sale of property of Carroll there was an understanding that the plaintiff would forbear the collection of the judgments, provided Carroll would give him a note for principal and interest, together with a further sum by way of usurious interest, and that as a cover for this agreement it was understood that the property of Carroll, or some part thereof, should be exposed to sale under the execution, and bid off by the plaintiff, when the note was to be delivered, the sale to be stopped, and the property redelivered to *Page 340 Carroll; all of which was accordingly done. The answers also contain a general allegation that the original notes upon which judgments had been rendered were tainted with usury. It was objected upon the argument that there was no sufficient proof of the loss of the note to let in evidence of its contents or to give this Court jurisdiction. Equity assumes jurisdiction, not merely upon the ground of accident, but because its mode of giving relief effects complete justice; for its decrees are modeled to suit every circumstance which may be presented in a cause; and a decree for the plaintiff, in the case of a lost bond, requires him to indemnify the (487) defendant; whereas the judgment at law is absolute, either for the plaintiff or defendant.
The affidavit of loss, annexed to the bill, is sufficient to induce this Court to take jurisdiction, and upon the hearing it is sufficient to let in proof of the contents of the note, unless there be some opposing evidence; for the affidavit is aided by the consideration that the plaintiff will be required to indemnify the defendant, and can expect to derive no benefit by a change of the forum, when the answer admits the execution of the note and its contents. We think the affidavit of loss is not only competent, but sufficient, evidence to allow the plaintiff to read the answer for the purpose of showing the contents of the note; for there is then no motive for coming into equity unless the note be really lost. The fact that equity requires slighter proof of the loss is the main reason to induce parties to sue in that court, and distinguishes its mode of proceeding from that of a court of common law; for, there, strict proof of the loss must be required, as the judgment is absolute and there is no way to impose conditions.
The question of loss does not touch the merits, but is a collateral matter preliminary to the admission of secondary evidence. In many cases the affidavit of the plaintiff is the only proof he can make of the loss. He cannot expect upon this point any aid by a discovery from the defendant; for, as a matter of course, he knows nothing of the loss, and he cannot, except in a rare case, have a witness to the loss. He will, therefore, be without remedy unless equity can give relief upon his mere affidavit. If he can prove the loss, it is better for him to sue at law, where he will get an absolute judgment. In equity he is to give an indemnity, and his coming there strongly supports the affidavit. Relief is, therefore, given upon his mere affidavit as to this collateral matter; for it would be out of the question that one should lose his right (488) because he cannot prove the loss of a note, and it is against *Page 341 conscience for the debtor, who admits the execution and contents of the note, to seek to avail himself of an accident which does not affect the rights of the parties one way or the other. The case would be different if the execution or contents of the note was denied; and that was, on the oath of the defendant, suggested as the plaintiff's motive for falsely alleging its loss. In such a case, although equity would not refuse to consider the mere affidavit as sufficient to account for not producing the original note, the strictest and clearest proof of the execution and contents would be required. Walmesly v. Child, 1 Ves., Sr., 324.
We do not concur in the dictum of his Honor, Judge Gaston, in Allen v.Bank, 21 N.C. 7, that the plaintiff cannot prove the loss of a note by his own oath, although its correctness is assumed by Judge Daniel in Dumasv. Powell, 22 N.C. 122, who considers the affidavit evidence, but requires strong corroborating proof. In both cases the Court considered there was plenary proof of the loss, and it did not become necessary todecide whether, if there had been no proof upon this preliminary question but the affidavit, the plaintiff would have been entirely without remedy. The loss of a deed, even in a court of law, may be shown by the oath of the party, so as to let in secondary evidence; and the only reason why the same practice is not followed in those courts in reference to the loss of bonds and notes is the want of power to require an indemnity as a condition to the judgment.
Although the decrees of this Court are better calculated to effect complete justice than judgments at law in such cases, the mode of trying facts at law by examination of witnesses in the presence of a jury is preferable to the mode of trial in this Court, particularly when the very defective manner of taking depositions is considered. (489) Many are stuffed with impertinent matter, and very frequently the parties, by not apprehending the point of the case, omit, upon the examination or cross-examination, to ask the very questions which bear upon the important facts. By directing the trial of an issue before a jury, the parties will have the benefit of the common-law mode of trial, and at the same time have relief according to the course of this Court.
The defense cannot be sustained upon the general allegation of usury before the rendition of the judgments by the magistrate; for, admitting the original notes to have been usurious, there is no sufficient averment that the judgments were confessed in pursuance of a corrupt agreement, and as a cloak for usury; and no reason is assigned why the original debtor, Underwood, did not rely upon the plea of usury before the magistrate. The judgments, therefore, are conclusive as to all matters that could have been relied on as a defense upon the trial of the warrants.
The allegation in reference to the note of $768, if true, will fully sustain the defense, but the proof filed is confused and unsatisfactory, and *Page 342 this Court directs the fact to be tried by a jury in the county of Sampson in the Superior Court, for which purpose the defendants will accept service of a writ in debt upon a note of $768, due 15 October, 1846; and upon the trial they will admit the execution and contents of the note and its loss, and put their defense upon the plea of usury, which will depend upon the following question, Was the note delivered in pursuance of an understanding between the plaintiff and the defendant Carroll, entered into before the sale of Carroll's property, as a cover for an usurious agreement? Or was it delivered as a consideration for property bought by the plaintiff, without any previous understanding, and for the balance of the judgments held by the plaintiff?
(490) Any deposition filed in the cause may be received on the trial by either party, if the witness has left the State, or is dead, or is too infirm to attend court. The finding of the jury will be certified to this court.
PER CURIAM. Ordered accordingly.
Cited: Davis v. Davis, ante, 421; McRae v. Morrison, 35 N.C. 48;Fisher v. Carroll, 46 N.C. 31; Chancy v. Baldwin, ib., 79; Smith v. Hays,54 N.C. 324; Fisher v. Webb, 84 N.C. 46; Loftin v. Loftin, 96 N.C. 100;Harding v. Long, 103 N.C. 7; Gillis v. R. R., 108 N.C. 446;Sallenger v. Perry, 130 N.C. 138.