Girard Fire & Marine Ins. v. Guerard , 3 Woods 427 ( 1878 )

WOODS, Circuit Judge.

The bill cannot be sustained on the ground of discovery, for discovery is expressly waived, nor on the ground of account, for the complainant states with precision the amount- he claims, and if anything is to be added by way of íuioruot or expenses, that can be ascertained as well in a court of law as of equity. Does the fact that the bond is not in the possession of complainant, but that its possession has been obtained by the fraud of one of the obligors, give a court of equity jurisdiction? It does not, if, notwithstanding these facts, there still remains to complainant a plain, adequate and complete remedy at law. These circumstances do not, either in stating the case by pleading, or in proving it by evidence, in a court at law, present any obstacle to a complete and adequate remedy. When a party pleads a deed, or claims or justifies under it, he must, as a general rule, make profert of it. But there are exceptions to this rule, among which is the case where the deed is lost or destroyed, or is in the possession of the opposite party. These circumstances dispense with the necessity of profert. Steph. ri. 430-441.

In proving the averments of the declaration, when the instrument sued on was lost or in possession of ODposite party, there would be no obstacle in a court of law. Even where a written instrument which is required in evidence is in the possession of a third person, yet if there is a privity between such person and the party, a notice to the party is sufficient to let in evidence of its contents. And in case the other party refuses to produce an original deed or agreement which is in his possession, and which he has had notice to produce, secondary evidence of the contents will be received without proof of the execution of the original. 1 Phil. Ev. 440, 452. This is substantially the rule enacted by the Code of Georgia, without regard to the means by which the paper got into the possession of the opposite party. See Code, §§ 3508-3510. So that if the complainant had brought an action' at law on the bond, he would have found no difficulty incident to the limited powers of the court, either in stating his- case upon the pleadings, or sustaining it upon the evidence.

But it is insisted by complainant’s counsel that the bill avers fraudulent conduct and practices on the part of the principal of the bond in obtaining its return, and that these averments give a court of equity jurisdiction. In answer to this, it is to be observed, first, that it is not the fraud of a party defendant to the bill which is complained of. There is no averment that either Richard D. Guerard or H. F. Train was guilty of any fraudulent practices in obtaining possession ■ of the bond or otherwise. It is fraud practiced by a party defendant and not by third persons, which gives a court of equity jurisdiction. 1 Story, Eq. Jur. § 203.

It is not mere fraud which confers jurist diction on a court of equity. A party may be guilty of fraud in the warranty of personal property sold, but nevertheless the remedy is at law on the warranty. So, if the maker of a bond by fraudulent artifice, or even theft, gets possession of the bond from the obligee, still if the obligee has a duplicate of the bond he cannot proceed in equity to recover upon the bond. A court of equity has jurisdiction to relieve from the consequences of fraud, as where a bond or note is procured, or deed of conveyance obtained, on false and fraudulent pretenses. So where a bond or deed is delivered up on’ fraudulent representations and is canceled or destroyed. Crosse v. Bedingfield, 12 Sim. 35; East India Co. v. Donald, 9 Ves. 275. But in this case there is no averment that the bond is lost, destroyed or canceled. The averment is simply that one of the parties to the bond, not a party to the suit, had, by false pretenses, obtained the possession of the bond, and the complainant, by his bill, furnishes what he .avers to be a substantial copy. The bond is still in force, for the fraudulent acts of the principal in getting possession of it do not cancel it. Even deeds canceled by fraud and imposition are still in force. U. S. v, Spaulding [Case No. 16,365]. The bond, from all that appears by the bill, is in existence, is still in. full force and effect, and it can be pleaded and proven without difficulty or obstruction in a court of law. Under these circumstances it seems clear that the fraud of one not a party to-the suit, in getting the possession of the bond from the obligee, does not authorize it to go into a court of equity for relief.

The rule to govern such cases is laid down with great -precision and clearness by Mr. Justice Campbell in the case of Hipp v. Babin, 19 How. [60 U. S.] 271: “The result of the argument is, that whenever a court of law is competent to take cognizance of a right and has power to proceed to a judgment, which affords a plain, adequate and complete remedy without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury.”

The demurrer to the bill must be sustained.