Cook, J.,
delivered the opinion of the court.
The appellee, N. F. Allen, filed his original bill in the chancery court of Bolivar county against the Palmetto
F'ire Insurance Company and D. H. Adams, its agent at Boyle, Miss., seeking to compel the issuance and delivery of a fire insurance policy under an alleged contract to renew a former policy, which, was alleged to have been lost or destroyed. The bill prayed for discovery of all the terms and conditions of the lost policy, and that the insurance company be ordered to issue a policy of insurance, renewing the policy aforesaid, and containing the identical terms and conditions as the original policy, but to expire one year from the date of the expiration of the lost policy, and that, on account of a loss which occurred after the expiration of said lost policy, the defendants be held liable to appellee for the amount of insurance covered in the said renewal policy. A demurrer to this bill was overruled by the court below, and an appeal granted to settle the principles of the case. Upon the hearing of this appeal, the decree of the court below was reversed, the demurrer sustained, and the cause remanded, with leave to complainant to amend his bill within thirty days after the receipt of the mandate in the court below; and the opinions of the court are reported in 141 Miss. 681-690, 105 So. 483-760'. The averments of the original bill are fully set forth in the opinion of the court on this former appeal, and need not be here repeated. There was no copy of the alleged lost policy filed with the original bill, and the bill expressly waived answer under oath; and the court held that it did not contain such allegations as would enable the court to grant relief without a discovery, and that a bill for discovery which waived answer under oath could not be maintained, the court in response to the suggestion of error saying:
“There were insufficient allegations in the bill to‘disclose the nature, terms, and conditions of the insurance policy, and it appears from a fair construction of the allegations of the bill that the complainant was unable to set them forth. At all events, it will require an amendment to the' bill for the court to know with legal
precision what the terms and conditions of the policy are.”
Upon the filing of the mandate of this court in the court below, the appellee filed an amended bill, setting up substantially the same facts as were alleged in the original bill, with the exception that the prayer for discovery and the allegation that the original policy was lost or destroyed were omitted therefrom, and there was attached to the bill, as an exhibit thereto, a copy of an insurance policy which was alleged to be a “substantial copy” of the expired policy, and which, it was alleged, the agent of the insurance company had agreed to renew.
Additional parties who were alleged to be indebted to the nonresident insurance company were made defendants to the bill, and an attachment of the effects of the nonresident insurance company in the hands of the resident defendants was sought. The bill prayed that the defendant insurance company be required to specifically perform the agreement to issue a renewal policy containing the identical terms and conditions as the original policy, with the exception that it should expire one year from the date of the expiration of the old policy, and that the said renewal policy be treated and considered as having been issued, that the defendant insurance company he held liable for the loss by fire of the property covered thereby, and that a decree be entered in favor of appel-lee and against the defendant insurance company for the sum of one thousand five hundred dollars, the face of the original policy, less'the amount of the premium on said renewal policy, and that all indebtedness of,the resident defendants to the said nonresident insurance company be subjected to the satisfaction of this decree.
The several defendants interposed a demurrer to this amended bill, which was overruled, and, from the decree overruling this demurrer, this appeal was prosecuted. The demurrer challenged the sufficiency of the amended bill upon many grounds, which we shall not here set forth,
but shall discuss only the points presented in the brief of counsel for the appellants.
The first point urged by counsel is that the demurrer to the amended bill should have been sustained, for the reason that it states no new or additional facts, but in effect changes the essential character of the original bill, and makes a new or wholly different cause of action. The general purpose of both the original bill and the amended bill is to require the issuance of a renewal policy in accordance with a contract so to do, and to recover for a loss thereunder. It may be true that the filing of an alleged substantial copy of the original policy is inconsistent with the allegation of the original bill that this policy was lost or destroyed, and consequently the complainant could not state the terms and conditions thereof without the aid of discovery; but it is not inconsistent with the general purpose of the original bill nor with the relief sought, and for this reason we think the position of appellants on this point cannot be maintained. This doctrine has been announced by this court in several cases. In the case of
Hardie
v.
Bulger,
66 Miss. 577, 6 So. 186, the court, speaking through Justice Cooper, said:
“The object and purpose of the original bill was to vacate the mortgage for certain reasons therein stated. On this bill an issue of fact was made, and is yet pending and undetermined. The amendment sets up another and a different state of facts, upon which relief of the same character is sought. The new facts may be inconsistent with the facts stated in the original bill, but they are not inconsistent with the general purpose of the original bill, nor with the relief originally sought.”
In the case of
Eagle Lumber & Supply Co.
v.
Peyton,
145 Miss. 482, 111 So. 141, it was urged that the case set forth in the original bill was inconsistent with that alleged in the amended bill, and in response to this contention Chief Justice Smith said:
“The relief sought by both the original and amended bill is the sale of certain land and the application of the
proceeds thereof to the payment of an indebtedness dne from the Peytons to the appellant. It is true that the lien sought to be enforced in the original bill is different from the one sought to be enforced in the amended bill, but the object sought to be accomplished in each is the same, and therefore there is no inconsistency between them.”
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Cook, J.,
delivered the opinion of the court.
The appellee, N. F. Allen, filed his original bill in the chancery court of Bolivar county against the Palmetto
F'ire Insurance Company and D. H. Adams, its agent at Boyle, Miss., seeking to compel the issuance and delivery of a fire insurance policy under an alleged contract to renew a former policy, which, was alleged to have been lost or destroyed. The bill prayed for discovery of all the terms and conditions of the lost policy, and that the insurance company be ordered to issue a policy of insurance, renewing the policy aforesaid, and containing the identical terms and conditions as the original policy, but to expire one year from the date of the expiration of the lost policy, and that, on account of a loss which occurred after the expiration of said lost policy, the defendants be held liable to appellee for the amount of insurance covered in the said renewal policy. A demurrer to this bill was overruled by the court below, and an appeal granted to settle the principles of the case. Upon the hearing of this appeal, the decree of the court below was reversed, the demurrer sustained, and the cause remanded, with leave to complainant to amend his bill within thirty days after the receipt of the mandate in the court below; and the opinions of the court are reported in 141 Miss. 681-690, 105 So. 483-760'. The averments of the original bill are fully set forth in the opinion of the court on this former appeal, and need not be here repeated. There was no copy of the alleged lost policy filed with the original bill, and the bill expressly waived answer under oath; and the court held that it did not contain such allegations as would enable the court to grant relief without a discovery, and that a bill for discovery which waived answer under oath could not be maintained, the court in response to the suggestion of error saying:
“There were insufficient allegations in the bill to‘disclose the nature, terms, and conditions of the insurance policy, and it appears from a fair construction of the allegations of the bill that the complainant was unable to set them forth. At all events, it will require an amendment to the' bill for the court to know with legal
precision what the terms and conditions of the policy are.”
Upon the filing of the mandate of this court in the court below, the appellee filed an amended bill, setting up substantially the same facts as were alleged in the original bill, with the exception that the prayer for discovery and the allegation that the original policy was lost or destroyed were omitted therefrom, and there was attached to the bill, as an exhibit thereto, a copy of an insurance policy which was alleged to be a “substantial copy” of the expired policy, and which, it was alleged, the agent of the insurance company had agreed to renew.
Additional parties who were alleged to be indebted to the nonresident insurance company were made defendants to the bill, and an attachment of the effects of the nonresident insurance company in the hands of the resident defendants was sought. The bill prayed that the defendant insurance company be required to specifically perform the agreement to issue a renewal policy containing the identical terms and conditions as the original policy, with the exception that it should expire one year from the date of the expiration of the old policy, and that the said renewal policy be treated and considered as having been issued, that the defendant insurance company he held liable for the loss by fire of the property covered thereby, and that a decree be entered in favor of appel-lee and against the defendant insurance company for the sum of one thousand five hundred dollars, the face of the original policy, less'the amount of the premium on said renewal policy, and that all indebtedness of,the resident defendants to the said nonresident insurance company be subjected to the satisfaction of this decree.
The several defendants interposed a demurrer to this amended bill, which was overruled, and, from the decree overruling this demurrer, this appeal was prosecuted. The demurrer challenged the sufficiency of the amended bill upon many grounds, which we shall not here set forth,
but shall discuss only the points presented in the brief of counsel for the appellants.
The first point urged by counsel is that the demurrer to the amended bill should have been sustained, for the reason that it states no new or additional facts, but in effect changes the essential character of the original bill, and makes a new or wholly different cause of action. The general purpose of both the original bill and the amended bill is to require the issuance of a renewal policy in accordance with a contract so to do, and to recover for a loss thereunder. It may be true that the filing of an alleged substantial copy of the original policy is inconsistent with the allegation of the original bill that this policy was lost or destroyed, and consequently the complainant could not state the terms and conditions thereof without the aid of discovery; but it is not inconsistent with the general purpose of the original bill nor with the relief sought, and for this reason we think the position of appellants on this point cannot be maintained. This doctrine has been announced by this court in several cases. In the case of
Hardie
v.
Bulger,
66 Miss. 577, 6 So. 186, the court, speaking through Justice Cooper, said:
“The object and purpose of the original bill was to vacate the mortgage for certain reasons therein stated. On this bill an issue of fact was made, and is yet pending and undetermined. The amendment sets up another and a different state of facts, upon which relief of the same character is sought. The new facts may be inconsistent with the facts stated in the original bill, but they are not inconsistent with the general purpose of the original bill, nor with the relief originally sought.”
In the case of
Eagle Lumber & Supply Co.
v.
Peyton,
145 Miss. 482, 111 So. 141, it was urged that the case set forth in the original bill was inconsistent with that alleged in the amended bill, and in response to this contention Chief Justice Smith said:
“The relief sought by both the original and amended bill is the sale of certain land and the application of the
proceeds thereof to the payment of an indebtedness dne from the Peytons to the appellant. It is true that the lien sought to be enforced in the original bill is different from the one sought to be enforced in the amended bill, but the object sought to be accomplished in each is the same, and therefore there is no inconsistency between them.”
There is filed with the amended bill as the basis of the cause of action therein stated what appears to be a complete copy of an insurance policy, which is alleged to be a “substantial copy” of the original policy covering the property destroyed by fire; but áppellants contend that the filing of a substantial copy of the policy on which the action is founded is not a compliance with section 734, Code 1906 (Hemingway’s 1927 Code, section 531), which provides that — “In actions founded on any writing, a copy of such writing, with the nam«s of subscribing witnesses, if any, shall be annexed 'to or filed with the declaration. ’ ’
A substantial copy of a writing means a copy of all the material and essential elements, terms, and conditions thereof.; and that is all that is required by this statute. Where it is sought to charge a defendant in an action founded upon a writing, he can be affected only by the material and essential elements, terms, and conditions of the writing, and the filing of a copy thereof, which contains all such elements, conditions, and terms, is a compliance with the requirements of this statute. In support of the contention that the filing of a substantial copy is not a compliance with this statute, the appellants rely on the case of
Home Insurance Co.
v.
Newman,
147 Miss. 237, 111 So. 455, but that case is not analogous to the case at bar. It was a suit to recover for the loss by fire of a stock of goods.; and there was filed with the bill, as the basis of the suit, a copy of a certificate or memorandum of the policy as it stood at the date of issue of the certificate, and it expressly provided that it was given as a matter of information only and conferred no rights on the holders. The bill of complaint did not allege that
no policy was actually issued, nor that, if issued, it was lost or destroyed; and the court there said that — “If, as a matter of fact, no policy had been issued, and if the bill had been drawn to show that the exhibit contained the terms of the real agreement, a different case would be before us.”
Section 597, Code 1906 (section 372, Hemingway’s 1927 Code), provides that — “A complainant desiring to make new parties to his bill may file his- amended bill for that purpose in the clerk’s office, in vacation, without leave of the court or chancellor; and thereupon the clerk shall issue process upon such bill, in like manner as if it were an original bill. ’ ’
This statute was complied with, and consequently there was no error in permitting the joinder in the amended bill of new parties defendant.
It is well settled by the decisions of this court, as well as the authorities generally that a court of equity has jurisdiction to compel “the issuance and delivery of an insurance policy after a loss, where there has been a valid agreement for one before the loss, and will enforce payment of it as if made in advance. ’ ’
Franklin Fire Insurance Co.
v.
Taylor,
52 Miss. 443;
Liverpool London & Globe Ins. Co.
v.
Hinton,
116 Miss. 754, 77 So. 652. Consequently, we are of the opinion that, independent of the attachment feature of the bill, the chancery court had jurisdiction of this cause.
The first appeal of this cause was disposed of on November 2, 1925', but the appellee did not pay the cost and secure the filing of the mandate in the court below until September 30, 1926. The amended bill was filed ten days thereafter, or on October 9, 1926, which was well within the time allowed by this court for amendment after the filing of the mandate in the court below; and there is no merit in the appellants’ contention that the right to amend was lost on account of laches, or want of diligence on the part of the appellee.
There is no requirement that a bill seeking to compel compliance with an agreement to issue and deliver an insurance policy after a loss, and to enforce recovery thereunder for the loss, shall be sworn to,; and we think the bill, as amended, brings the cause of action therein stated strictly within the doctrine and procedure approved in the case of
Liverpool & London & Globe Ins. Co.
v.
Hinton,
116 Miss. 754, 77 So. 652, and that the demurrer was properly overruled.
The decree of the court below is therefore affirmed, with leave to the appellants to answer the bill within thirty days after the filing of the mandate in the court below.
Affirmed and remanded.