This was an action of covenant. The declaration states that the defendant had fraudulently obtained possession of the obligation, so that profert cannot be made; to which there was a demurrer, assigning for causes: first, want of profert; second, an action at law cannot be maintained. The Circuit Court overruled the demurrer and awarded a writ of inquiry, which was executed at the subsequent term; verdict and judgment for $150.
It is admitted in argument, that it has never been decided in this State that an action at law can be supported on a lost bond, and therefore the question is now open for decision.
On the part of the plaintiff, it is insisted that it cannot be maintained, there being no precedent of such a case previously to the case of Read v. Brookman in 3 Term Rep. 151, for which the following authorities have been relied upon: Co. Lit. 35 b, 255 a; 5 Co. 74; 10 Co. 92; 2 Str. 1186; and the MS. case of Helm v. Eastland in the Court of Appeals in Kentucky. The Court of Chancery, it is said, has uniformly considered the subject in this light.1 This argument has been met by showing many cases where actions have been sustained on lost bonds, since that of Read v. Brookman, as 1 H. B. 255; 1 Wash. 241.
In the English books, a great variety of cases exist on the *Page 309 subject of profert. The general rule is to be found in Weymark's, Leyfield's, and Bellamy's cases in Coke's Reports.
It will be found to be, that, in all actions, a man who claims by deed and pleads it, if he be a party to the deed, must make profert; and, where the deed is not the foundation of the claim, may either plead it or not.
The law, however, requires profert in all cases where the claim cannot arise except by deed, as in things which lie entirely in grant. Nearly all the cases in the books are founded in this idea. Upon examining the cases to be found in Viner's Abridgment, tit. Faits, and Com. Dig. tit. Pleader O, c., no precedent is perceived where a plaintiff has bottomed his claim on a deed and profert has been dispensed with. There are many cases where, on the part of the defence and in replying, it has been dispensed with on the ground of fraud or necessity. For a more perfect view of these exceptions to the general rule of law, as well as a knowledge of their origin, we refer to Viner's Abridgment, tit. Faits. Ma; and P. 66, Ma. 671, Ma. 7, Ma. 8, Ma. 9, Ma. 10, Ma. 11, 73-78, and Com. Dig. tit. Pleader O, 8, c.
Sir Edward Coke, who must be admitted to have possessed as strong a wish to extend the powers of a court of law in derogation of chancery powers as any judge, has specified but three cases in which profert may be dispensed with. In case of some great public calamity, as fire; the fraud of the other party, as where he has the deed and will not produce it, or has caused its destruction; and where the deed is in another court.
The great and important principles of the Court of Chancery, so necessary to the preservation of law in a free country, were unknown in the time of Coke. The exercise of its necessary powers met with his decided and strenuous opposition. And it will always be kept in mind that the jurisdiction of chancery was then in its infancy. Its superiority to courts of law, in adopting its modes of redress in civil cases to the varied actions of men, was then unknown; nor in fact had any efforts been made to ascertain the limits of its jurisdiction, narrow as it was. We have not a vestige of a decision in chancery previous to the time of Charles II.
It was the court of common law that anciently did all the business, and it was in advancement of the jurisdiction and improvement of those courts that we find the sturdy and capacious mind of Coke employed. Most of his reported cases, and references to other reports, respected cases decided at law. *Page 310
In his time, and particularly with his disposition, if a man could not obtain remedy at law, he must generally go without it.
Though there was not wanting a disposition to make the modes of redress at common law adequate to the exigencies of society; yet so confined were those courts in their method of proceeding, as to be incapable of administering substantial justice in many cases; this generated a disposition in the nation to enlarge the chancery powers to administer justice where the modes of redress at law were incompetent to afford it. As commerce extended, and civilization progressed, the necessity and convenience of the exercise of chancery powers increased; until we see at this day a court of equity exercising undisputed jurisdiction, not only as an auxiliary in the cause of justice, agreeably to its original character, but exercising concurrent jurisdiction with courts of law in relation to many of its important branches, when the modes of legal redress have been found to be embarrassed, doubtful, or inadequate.
It was when mankind knew of a court of law only as a place of administering justice that those courts dispensed with profert, lest there might be a defect of justice. For the wisest purposes, it was always conceived a matter of substance; and, after the establishment of the general principle, it was with evident reluctance that courts of common law admitted of any exception, as may be seen from Dr. Leyfield's case, and the summary of cases in Viner's Abridgment, nearly all of which were antecedent to, and contemporary with, the period of Sir Edward Coke's reports. It was only in cases of some public or notorious calamity, as fire, rebellion, or thieves, and the fraud or obstinacy of the opposite party in detaining or destroying the deed, that the law dispensed with profert.1 Had there been a court of chancery at that time in the exercise of powers, such as we now see, unattended by the aversion against it manifested by Lord Coke, no such exceptions as these could have arisen. As the parties would have a more safe, convenient, and less embarrassed mode of redress in equity, we never should have heard of the necessity of the case as giving rise to exceptions to the general principle. The fewer exceptions to general rules, the less embarrassed the law is. In the nature of things, we rarely expect to see a rule without an exception; but where it can be attained, it is far better for the happiness of mankind. As exceptions multiply, law becomes more doubtful and obscure. *Page 311
Simplicity in legal science is what distinguishes its superiority in all ages and countries. It is with this view the subject will be more particularly examined, — to see if, consistent with acknowledged principles, the proper rule in this country be not found clothed with this simplicity of character. Notwithstanding these exceptions are laid down by Coke, we find no instance of profert being dispensed with, in the manner contended for in the principal case; even the case of Readv. Brookman2 does not come up to this case. There it made part of the defence, and not the ground of action, as in this case; and there surely is a wide difference in the operation of the new principle where this dispensing with profert is on the part of the plaintiff, and on the part of the defendant.3 Lord Hardwicke observes in Whitfieldv. Fausset,4 "you may drive the defendant to very disadvantageous issues by this method." The inconveniences are stated clearly in Leyfield's case.5 If, in England, inconveniences would arise from permitting the plaintiff to declare without profert, how much harder must the defendant's case be here; deprived of oyer, he verily believes he never did give such a covenant as that stated in the plaintiff's declaration, yet he knows he executed one which, in most parts, agrees with the one referred to. If he deny it, it must be on oath; for the plea of non est factum must here be put in on oath.
A conscientious man, who values his reputation, would be fearful of risking the plea, not knowing how parol proof may make the case, though he knows that he never did make such a covenant. Reverse the case, and send the plaintiff to equity for redress; there the rules of practice require him to annex an affidavit to his bill of the loss of the bond as stated therein. The defendant denies in his answer; theonus probandi lies on the plaintiff. At law, on the plea ofnon est factum, the onus probandi though on the plaintiff, the defendant is placed under truly disadvantageous circumstances, to use the phraseology of Lord Hardwicke.
It is repugnant to all ideas of justice and long acknowledged principles that this should be the case. In most cases, the loss of bonds is occasioned by the carelessness or negligence of those who have possession of them. Whatever inconvenience thence arises surely should not be placed on the shoulders of the obligor, against whom no imputation can be made. By allowing a party plaintiff, who makes a lost bond the ground of his action, to declare without profert, the onusprobandi is almost necessarily thrown on the defendant. The general issue must be on oath, which *Page 312 the defendant would be afraid to venture, and any special plea must confess and avoid. The case of Read v. Brookman, on which the argument of the defendant's counsel is founded, seems to have originated from an improper application of the doctrine of legal presumptions. One of the exceptions to the general rule, noticed in Weymark's case,1 is the only one which is supported by correct principles, "where a deed has been pleaded in some other court, where it remains and may be resorted to." This is admitted, because it does not fall within the scope of reasoning opposed to the new principle established in Brookman's case. In the excepted case, access can be had to the deed in another court, though profert be dispensed with.
All the cases in the books must arise out of interests of some one or other of the following classes: —
1st. From deeds communicating corporeal estates of freehold, and, since the statute of frauds and perjuries, those of less dignity.
2d. Similar incorporeal estates, which lie in grant, agreeably to the principles of the common law.
3d. Deeds communicating rights which lie in action.
4th. Deeds operating as an extinguishment, release, c. Considering the structure of the common law, cases under the first class could but seldom arise, and estates of inferior dignity might pass by livery without deed; consequently, though there might be a deed, the party was not bound to plead it.2
So when the thing to which the deed relates has been executed,3 it is from cases arising out of the second and fourth classes we must look for precedents; principally, however, arising out of the second. The reasoning in Brookman's case is referrible to two principles: first, length of time, creating a presumption of law; and, secondly, to accident.
As the main force of the reasoning is derived from presumption, a succinct history of this part of the law may not be improper. A careful observation of the changes it has undergone may throw some light on the subject. Its principles formed part of the common law. The first impression was that after forty years of uninterrupted enjoyment of property lying in grant, a deed or grant would be presumed, though none could be produced.1 Afterwards thirty years were considered sufficient to create a presumption of the former existence of a grant or deed.2
From the earliest accounts we have of the decisions of the courts on common-law principles, presumptions of non-existing grants and deeds have obtained, as recognized in *Page 313 Biddle v. Beard,3 where the Court said "it would intend in respect of the ancient and continued possession, that there was a lawful grant of the king; for records and letters-patent and other writings are either consumed, or are lost or embezzled: and God forbid that ancient grants and acts should be drawn in question, which were at first necessary to the perfection of the things, although they cannot be shown." In the various decisions which have taken place since that time, until of late, the courts appear to have avoided laying down any precise rule on the subject.
They adjudged the cases before them, sometimes giving an opinion that fifty, forty, or thirty years were sufficient length of time to create a presumption of a non-existing grant or deed. At length in the case of Darwin v. Upton,4 twenty years were adjudged sufficient. This was the possession of ancient lights; but in 11 East, 284, 491, twenty years were esteemed a sufficient lapse of time to presume a grant from the crown; and in the same book, p. 376, six years' employment of a highway created a legal presumption of the grant from the owner of the soil. By recurring to a regular series of cases from the time of Sir Edward Coke, we perceive a disposition in the courts to narrow the time after which the presumption should arise, proceeding by analogy to the statutory provisions respecting limitation. Commencing first, by reference to the limitation in droitural actions, agreeably to the 32 H. VIII. c. 2, and 21 Johns. I. c. 16; and thence by an easy progress, the imitation of possessory actions, agreeably to the latter statute, was adopted as the rule of presumption; thus accommodating the principles of law to the progressive state of mankind. This is the natural course of things; for, as men advance in commerce and wealth, their civil rights are multiplied, the acquisition of property sought after and pursued with more activity.
Then it is that prescription and presumption must be resorted to, for the peace, order, and happiness of society; and hence we perceive the gradual extension of these principles. In relation to statutory regulations, coming nearer to our own time, we find this legal presumption on which limitation is founded narrows the time still more. As against the State, where, by the principles of the common law, no time runs, twenty years were prescribed as a proper time for the creation of this presumption, in case of a grant for land1; which is the strongest instance of a presumption.2 As against an individual, seven years gives rise to the *Page 314 presumption of a deed for real property, and three years in most cases respecting personal demands.3 This, however, is to be understood in reference to the latest decisions, from which it appears that presumptions are bottomed on the policy of statutory limitations,4 and not as giving any decisive opinion on the question of its application here. There is a material distinction between relying on a presumption of a grant or deed in evidence under the general issue, and in pleading, — in the first, it is a single fact, whether a right once passed by deed; in the latter, the substance, terms, and particulars of the deed are set out, or ought to be stated, so that the Court may judge of its meaning; for the construction of all deeds is matter of law for the Court to judge of, and not the jury. By dispensing with profert, matter of law, which exclusively belongs to the court, must be left to the jury;5 a circumstance which seemed to have escaped the attention of a majority of the judges in Brookman's case. The doctrine of presuming a non-existing grant, after a length of time, upon which nearly all the reasoning of Ashhurst and Buller depends, is admitted by Coke, as well as other writers since his time; at the same time it is laid down that, when it becomes necessary to found a claim on a deed in pleading, profert cannot be dispensed with, so that the Court may judge of it.
The other ground of argument by the Court, in that case, isaccident; and Coke's opinion in Leyfield's case respecting necessity from the loss of deeds, or detention by the opposite party, is the foundation of the opinion of the Court as to this branch of the subject. The dearth of precedents on this ground, with the uniform practice to recur to equity for relief in such cases, down to the time of Brookman's case, demonstrate the unsoundness of this doctrine. The point was not necessary to be determined in Leyfield's case, and it is evident that Sir Edward Coke's opinion in this respect arose from the hardship of the case, and a desire that a party should not be without remedy. Taking the whole of the case, and the inconveniences he depicts from dispensing with profert, this is evident. But at this day, by application to a court of equity to establish a lost deed, all these inconveniences are avoided, and the general principle suffered to operate unembarrassed with exceptions. In the case of Hardyv. Stephenson, 10 East, 55, though the Court does not expressly overrule Brookman's case, the reasoning employed completely overthrows it, and establishes the doctrine of Mr. Justice Grose in that case. The substance of the cases in 10 East is, "that where, in excuse of profert, it was averred that the *Page 315 deed was destroyed by accident and length of time, and therefore could not be brought into court, and that the date thereof, and the particular parties thereto, were for that reason unknown, this mode of pleading was held to be bad." It was the benefits arising from legal presumption which seemed to have principally governed Ashhurst and Buller in Brookman's case, as well as the apparent inconsistency of allowing matter to be given in evidence to a jury, and not permitting the same matter to be averred in pleading if necessary. In creating a new principle in Brookman's case, it ought not to have been forgotten that another was destroyed, by which a matter that properly belongs to the Court was transferred to the jury; thereby endangering that certainty in which the law delights, and placing the defendant in embarrassing circumstances, from which he could not extricate himself. Besides, in this way of pleading, a plaintiff who might wish to get an advantage of an obligor, would conceal or destroy the obligation, and allege, in his declaration, that it was lost by time and accident, and such variations in its terms, suitable to himself, as he could find the frail memory of a witness disposed to support. All these difficulties would be avoided by recurrence to a court of equity to establish or set up a lost deed.
The ancient doctrine of granting imparlances until the opposite party produced the deed, counterpart, or copy; or admit such counterpart or copy, — does not fall within the scope of this reasoning, and therefore no opinion is given on questions of that kind. It is only to cases where it becomes necessary to found a claim in pleading on a non-existing deed, or one not in the possession of the party wishing to avail himself of it, that this opinion applies. This leaves the doctrine of legal presumptions, so necessary to the happiness of society, untouched. As in the time of Lord Coke it might be relied on in evidence on the general issue, c.; so it is left by the Court in this case.
Upon a full view of the whole ground, it appears that the opinion of Mr. Justice Grose in Brookman's case is the correct one; and that the doctrine laid down by Hardwicke in Whitfield v. Fausett must obtain, "that where-ever a plaintiff at law intends to found an action on a deed, he must make profert."1
Judgment must therefore be reversed, and judgment for the defendant.
NOTE. — This case is often cited in our books for its reading upon the learning of presumptions, a subject not really before the Court; but not once, not even in Mr. Meigs's Dig., for what it did actually decide. — ED.
1 2 Atk. 61; 1 Atk. 3, 5; 1 Ves. 345, 393.
1 10 Rep. Leyfield's case.
2 3 Term Rep. 151.
3 13 Vin. Ab. 67, plg.
4 1 Ves. 394.
5 10 Coke, 92.
1 5 Coke, 74.
2 13 Viner's Ab. 76.
3 Ib. 74.
1 Vin. Ab. tit. Length of Time.
2 1 Bay, 364.
3 12 Rep. 5.
4 26 G. III; 3 Term Rep. 159.
1 Ird. Rev. 122; 1748, c. 4, § 5; 1791, c. 15, 21 years. Though these acts are not in force here, they serve to illustrate the argument. They are not in use, from accident, and it may be necessary for the legislature hereafter to make a similar regulation.
2 3 Term Rep. 158, per J. Ashhurst.
3 1715, c. 27.
4 Darwin v. Upton, 11 East, 284, 376, 491; 2 Vent. 340, 343; 3 P. W. 238.
5 13 Vin. Ab. 66.
1 The principles which govern the rights of men are exactly the same in courts of law and courts of equity. The history of our jurisprudence shows that the latter have ever acted as pilots for courts of law in the improvement of legal science. Sir John Mitford observes, that "the distinction between strict law and equity is never, in any country, a permanent distinction. It varies according to the state of property, the improvement of arts, the experience of judges, the refinement of a people;" and again that "law and equity are in continual progression, and the former is constantly gaining ground upon the latter. A great part of what is now strict law, was formerly considered as equity; and the equitable decisions of this age will unavoidably be ranked under the strict law of the next." Mitf. 428, 431. In this short outline, we see the boundaries between law and equity described by the pen of a master in his profession. The precedents result in this, that wherever a party can obtain adequate relief in a court of law, according to its modes of proceeding, he shall not have relief in equity. But where the remedy is difficult, embarrassed, or inadequate, equity will entertain jurisdiction. 3 Johns. 590; 2 Caines, 251; Hughes, 79; 10 Johns. 587.
But it is of great importance that the jurisdiction of courts of law and equity should be kept as distinct as possible. Thus, Sir John Mitford afterwards, when chancellor of Ireland, observes, in the case of Shannon and Bradstreet, when speaking of the constitution of courts of justice, "It is a most important part of that constitution that the jurisdiction of the courts of law and equity should be kept perfectly distinct; nothing contributes more to the due administration of justice. And though they act in a great degree by the same rules, yet they act in a different manner, and their modes of affording relief are different. And anybody who sees what passes in the courts of justice in Scotland, will not lament that this distinction prevails. But Lord Mansfield seems to have considered that it manifested liberality of sentiment to endeavor to give the courts of law the powers which are vested in courts of equity; that it was the duty of a good judge ampliare jurisdictionem. This, I think, is rather a narrow view of the subject. It is looking at particular cases, rather than at the general principles of ad-ministering justice, observing small inconveniences and overlooking great ones." 1 Sch. Lef. 66. *Page 316