Shaw C. J.
The first cause of demurrer presented in the argument, is that John Campbell, one of the plaintiffs, and who is stated to have been a co-trustee with Henry Sheldon, in the deed of trust from Ezra L. Miller, has not made his affidavit, setting forth that the deed is not in his possession or power, and that he does not know where it is, unless it is in the hands of the defendants, or some one of them. Such an affidavit has been made by Isabella S. Marshall, the other plaintiff, and by Samuel A. Porter, who sues as her next friend ; but it is insisted on, as good cause of demurrer, that such affidavit has not been filed by Campbell. '
If such an affidavit be requisite, it would be especially so, from Campbell, who was one of the grantees in the deed [19]*19m question, and therefore might, equally with his co-trustee, he presumed to have the custody of the document.
But we are satisfied that this is not a case, in which such an affidavit, by the ruies of chancery practice, can be required.
One of the known heads of general chancery jurisdiction, ts that of “ accident and mistake,” under which the court will sustain jurisdiction in equity, where a party claims under a déed or bond, alleged to be lost. Formerly it ivas held, that at law proferí could not be dispensed with, and therefore the party claiming under a lost deed could have no remedy at law. Equity therefore' interposed to aid a discovery, to supply the want of such lost deed ; and even now, though it has been decided that at law a deed alleged to have been lost by time or accident, may be pleaded without proferí, still equity possesses a jurisdiction in such cases, because it had been established and exercised trader the former state of the law, and has since been retained, both upon the ground of usage, and because, in many cases, where the rights and liabilities of sureties, and other derivative and collateral rights and obligations of different parties among each other, are in question, equity can more effectually determine the suitable indemnities to be given, and adjust the relative rights of all parties, and bind the whole by a decree. But it being a rule in chancery, that when equity has jurisdiction for the purpose of discovery, it will also entertain jurisdiction for purposes of relief, if prayed for, and may therefore proceed to grant relief, although, but for the loss of the deed, the complainant would have a plain and complete remedy at law, if such party, by merely alleging the loss of his deed, without more, could give the court jurisdiction and pray relief, he could at Ms own pleasure change the forum, and go into equity, upon a case purely legal. To guard against this consequence the court require an affidavit of the actual loss of the deed, not so much as proof of the .act, because that is to be obtained m the ordinary way by die answer of the defendant or other proof, but to lay a ground for the jurisdiction of the court, where otherwise there would be no such ground. It manifestly therefore applies [20]*20to a case where the loss of the deed is relied on as the sole ground of chancery jurisdiction ; and cannot extend to a case, where a fraud, trust or other Imown ground of chancery jurisdiction is relied on, and a deed is sought to be disclosed, as any other fact material to the case is sought to be disclosed, by the answer of the defendant. This view is abundantly supported by authorities.
“ A bare suggestion in a bill is not sufficient to support the jurisdiction, the court requiring a degree of proof of the circumstance on which it is sought to transfer the jurisdiction from a court of law to a court of equity.” The want of such proof in such case is cause of demurrer. 1 Madd. Pr. 27; E. I. Co. v. Boddam, 9 Ves. 466. Therefore, when no relief is sought, but discovery only, there is no need of an affidavit, simply because in such case there can be no attempt to transfer the case from a court of law to a court of equity by alleging the loss of' the deed. Whitchurch v. Golding, 2 P. Wms. 541.
Here the rule requiring an affidavit, cannot apply, because the Court, under the limited equity jurisdiction given by statute, has no jurisdiction in cases of loss of deeds, and if no other ground were alleged in this bill, it must be dismissed, with or without an affidavit, for want of jurisdiction. But here the ground of equity jurisdiction set forth, is a trust created by deed, under which Henry Sheldon received the property, in question, which has devolved upon the defendants as his representatives, they having received the property sub ject to the same trust. If the jurisdiction cannot be maintained upon this ground, it cannot be maintained at all; and in supporting their case, upon the ground of trust, the plaintiffs have a right to a discovery and disclosure of deeds, as of any other facts or evidence in the knowledge or power of the defendants, under their oaths, and no affidavit is necessary.
The opinion of the Court upon other points in the case, was delivered at this term by
Wilde J.
This is a bill for compelling the performance oJ a trust arising under the last will and testament of Henry Sheldon, and a deed to him and John Camobell, one of the [21]*21plaintiffs, by which certain valuable property and effects were conveyed to them in trust for the use and benefit of the other plaintiff, Isabella S. Marshall. The bill charges, that after the execution of the deed of trust, Henry Sheldon received, collected and disposed of the whole of the trust property and effects, and appropriated the same to his own use; that he afterwards made his last will and testament, in due form of law, appointing Thomas Sheldon and Augustus Collins executors thereof, and afterwards died possessed of a large estate, which has since come into the hands of Thomas Sheldon, who accepted the trust, and caused the will to be proved before the ordinary in the district of Charleston and State of South Carolina, where Henry had his domicil at the time of his decease: and that letters of administration were granted by the ordinary to him as sole executor of the will, Augustus Collins having declined the trust. The bill proceeds to set forth the proceedings in the court in Charleston, averring that Thomas Sheldon returned two inventories of the estate of the deceased, and settled an account of administration in the probate court, but that he did not account for all the assets which came into his hands ; and that he has since withdrawn the same from the State of South Carolina to this commonwealth, where Thomas Sheldon has always had his residence. It is further alleged in the bill, that Thomas gave no bond nor security in the probate court in Charleston, to account for the estate and effects of the deceased, and that the plaintiffs have no remedy in the State of South Carolina to compel the performance of the trust, which they aver has never been fully performed by Thomas, although he has received sufficient assets to enable him to discharge all just claims upon the estate of Henry.
It is furthermore stated in the bill, that Thomas Sheldon is insolvent, and has paid over to the other defendants the legacies given in and by the last will of Henry, in full, a part of which they ought now to refund as proceeds of the sale of property held by Henry in trust for the plaintiffs.
The defendants demur to the bill; and the question is, whether the Court has jurisdiction of the case.
[22]
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Shaw C. J.
The first cause of demurrer presented in the argument, is that John Campbell, one of the plaintiffs, and who is stated to have been a co-trustee with Henry Sheldon, in the deed of trust from Ezra L. Miller, has not made his affidavit, setting forth that the deed is not in his possession or power, and that he does not know where it is, unless it is in the hands of the defendants, or some one of them. Such an affidavit has been made by Isabella S. Marshall, the other plaintiff, and by Samuel A. Porter, who sues as her next friend ; but it is insisted on, as good cause of demurrer, that such affidavit has not been filed by Campbell. '
If such an affidavit be requisite, it would be especially so, from Campbell, who was one of the grantees in the deed [19]*19m question, and therefore might, equally with his co-trustee, he presumed to have the custody of the document.
But we are satisfied that this is not a case, in which such an affidavit, by the ruies of chancery practice, can be required.
One of the known heads of general chancery jurisdiction, ts that of “ accident and mistake,” under which the court will sustain jurisdiction in equity, where a party claims under a déed or bond, alleged to be lost. Formerly it ivas held, that at law proferí could not be dispensed with, and therefore the party claiming under a lost deed could have no remedy at law. Equity therefore' interposed to aid a discovery, to supply the want of such lost deed ; and even now, though it has been decided that at law a deed alleged to have been lost by time or accident, may be pleaded without proferí, still equity possesses a jurisdiction in such cases, because it had been established and exercised trader the former state of the law, and has since been retained, both upon the ground of usage, and because, in many cases, where the rights and liabilities of sureties, and other derivative and collateral rights and obligations of different parties among each other, are in question, equity can more effectually determine the suitable indemnities to be given, and adjust the relative rights of all parties, and bind the whole by a decree. But it being a rule in chancery, that when equity has jurisdiction for the purpose of discovery, it will also entertain jurisdiction for purposes of relief, if prayed for, and may therefore proceed to grant relief, although, but for the loss of the deed, the complainant would have a plain and complete remedy at law, if such party, by merely alleging the loss of his deed, without more, could give the court jurisdiction and pray relief, he could at Ms own pleasure change the forum, and go into equity, upon a case purely legal. To guard against this consequence the court require an affidavit of the actual loss of the deed, not so much as proof of the .act, because that is to be obtained m the ordinary way by die answer of the defendant or other proof, but to lay a ground for the jurisdiction of the court, where otherwise there would be no such ground. It manifestly therefore applies [20]*20to a case where the loss of the deed is relied on as the sole ground of chancery jurisdiction ; and cannot extend to a case, where a fraud, trust or other Imown ground of chancery jurisdiction is relied on, and a deed is sought to be disclosed, as any other fact material to the case is sought to be disclosed, by the answer of the defendant. This view is abundantly supported by authorities.
“ A bare suggestion in a bill is not sufficient to support the jurisdiction, the court requiring a degree of proof of the circumstance on which it is sought to transfer the jurisdiction from a court of law to a court of equity.” The want of such proof in such case is cause of demurrer. 1 Madd. Pr. 27; E. I. Co. v. Boddam, 9 Ves. 466. Therefore, when no relief is sought, but discovery only, there is no need of an affidavit, simply because in such case there can be no attempt to transfer the case from a court of law to a court of equity by alleging the loss of' the deed. Whitchurch v. Golding, 2 P. Wms. 541.
Here the rule requiring an affidavit, cannot apply, because the Court, under the limited equity jurisdiction given by statute, has no jurisdiction in cases of loss of deeds, and if no other ground were alleged in this bill, it must be dismissed, with or without an affidavit, for want of jurisdiction. But here the ground of equity jurisdiction set forth, is a trust created by deed, under which Henry Sheldon received the property, in question, which has devolved upon the defendants as his representatives, they having received the property sub ject to the same trust. If the jurisdiction cannot be maintained upon this ground, it cannot be maintained at all; and in supporting their case, upon the ground of trust, the plaintiffs have a right to a discovery and disclosure of deeds, as of any other facts or evidence in the knowledge or power of the defendants, under their oaths, and no affidavit is necessary.
The opinion of the Court upon other points in the case, was delivered at this term by
Wilde J.
This is a bill for compelling the performance oJ a trust arising under the last will and testament of Henry Sheldon, and a deed to him and John Camobell, one of the [21]*21plaintiffs, by which certain valuable property and effects were conveyed to them in trust for the use and benefit of the other plaintiff, Isabella S. Marshall. The bill charges, that after the execution of the deed of trust, Henry Sheldon received, collected and disposed of the whole of the trust property and effects, and appropriated the same to his own use; that he afterwards made his last will and testament, in due form of law, appointing Thomas Sheldon and Augustus Collins executors thereof, and afterwards died possessed of a large estate, which has since come into the hands of Thomas Sheldon, who accepted the trust, and caused the will to be proved before the ordinary in the district of Charleston and State of South Carolina, where Henry had his domicil at the time of his decease: and that letters of administration were granted by the ordinary to him as sole executor of the will, Augustus Collins having declined the trust. The bill proceeds to set forth the proceedings in the court in Charleston, averring that Thomas Sheldon returned two inventories of the estate of the deceased, and settled an account of administration in the probate court, but that he did not account for all the assets which came into his hands ; and that he has since withdrawn the same from the State of South Carolina to this commonwealth, where Thomas Sheldon has always had his residence. It is further alleged in the bill, that Thomas gave no bond nor security in the probate court in Charleston, to account for the estate and effects of the deceased, and that the plaintiffs have no remedy in the State of South Carolina to compel the performance of the trust, which they aver has never been fully performed by Thomas, although he has received sufficient assets to enable him to discharge all just claims upon the estate of Henry.
It is furthermore stated in the bill, that Thomas Sheldon is insolvent, and has paid over to the other defendants the legacies given in and by the last will of Henry, in full, a part of which they ought now to refund as proceeds of the sale of property held by Henry in trust for the plaintiffs.
The defendants demur to the bill; and the question is, whether the Court has jurisdiction of the case.
[22]*22To maintain the affirmative, the plaintiffs must show that the defendants hold property in. trust arising under the will of Henry Sheldon, or in the settlement of his estate.
Of the will we can take no cognizance, since there has been no probate of it in this State; nor has any copy of it been filed and recorded, as required by the statute of 1785, c. 12. Nor can Thomas Sheldon be recognised as the rightful executor here, before he complies with the provisions of the statute.
But it has been argued that he may be charged as executor de son tort, and several authorities have been cited to establish this position.
In Dowdale’s case, 6 Co. 46, it was held that an administrator appointed in Ireland, and who received assets there, was liable to a suit in England. So in the case of Evans v. Tatem, 9 Serg. & Rawle, 258, it was decided, that if a person administers in one State and receives assets there, and after-wards removes into another State, he would be liable to the suits of creditors in the latter State. And the same principle is laid down in Campbell v. Tousey, 7 Co wen, 64. But although a person may be liable in such cases to be charged as executor de son tort, it does not follow that the creditors can through such an executor charge or bind the estate of the deceased. An executor de son tort has no legal control over the personal estate ; by his unlawful intermeddling he becomes liable to creditors, yet he cannot convey the personal property so as to enable the purchaser to hold it against the rightful executor, and to his prejudice. He can make no legal settlement of the estate, without first taking out letters of administration. He can obtain no license for the sale of the real estate, nor can he represent the estate insolvent for the purpose of causing distribution to be made among the creditors.
In the case of Mitchell v. Lunt, 4 Mass. R. 654, it was decided, that a creditor, who had recovered judgment against an executor de son tort, could not levy his execution on the real estate of the deceased; and the same decision was made in Borden v. Borden, 5 Mass. R. 67. It was not decided in these cases that the personal estate could not be [23]*23taken on execution; but as the real estate of the deceased, by our laws, is made liablé to be levied upon by executions on judgments against executors and administrators, it is not easy to perceive any substantial difference in this respect between the real and the personal property. The case of Humphreys et ux. v. Humphreys, 3 P.Wms. 348, was a bill in equity for the recovery of a legacy given by the will of Colonel Lancashire and for an account of his estate. The defendant had married the widow of the deceased, and became possessed of his effects, but had not taken out letters of administration, and for this reason the bill was dismissed, the chancellor holding that no account could be taken of the personal estate of the deceased, without making his executor or administrator a party.
The same principle is laid down by Chief Justice Tilghman in the case of William Huff’s estate on the appeal of Peebles, 15 Serg. & Rawle, 41.
And according to the case of the Selectmen of Boston v. Boylston, 2 Mass. R. 384, Thomas Sheldon would not be obliged to account here for assets received in South Carolina, although he had filed a copy of the will and taken out letters of administration in this State in pursuance of the statute. But certainly we cannot hold him to account here for his proceedings in South Carolina, upon the facts stated in the bill. We could not revise, correct or set aside those proceedings, if we had jurisdiction. It is however clear, we think, that as a court of equity we have no jurisdiction. The statute relating to trusts arising in the settlement of estates (St. 1817, c. 87,) must be confined to such trusts as arise in the settlement of estates by rightful executors or administrators. In the case of Gibbons v. Peeler, 8 Pick. 256, Chief Justice Parker says, “ We can see no reasonable exposition of the term, (‘ in the settlement of estates,’) unless it was intended to reach those implied trusts which may be charged upon executors or administrators by reason of the duties or neglect of duties, which devolve upon them in consequence of their appointment to and acceptance of such oEces: possibly also heirs may be charged with trusts within this description, in virtue of the settlement of estates upon one or more of them by a decree of [24]*24the judge of probate, where the estate does not admit of an equal division.”
But an executor de son tort, if Thomas Sheldon can be considered in that character, cannot settle the estate of the deceased ; he cannot sue for and collect the debts due to the estate, nor make any valid disposition of the goods and effects ; so that no trust can arise by any acts and doings of his in this commonwealth. ' Nor can he be considered as the personal representative of the deceased in this commonwealth, without filing a copy of the will and taking out letters of administration according to the directions of the statute. So that whether he may be sued or not as executor de son tort, in an action at law, it seems to be clear that he is not liable in a suit in equity. The trust estate is not vested in him, nor does any trust devolve on him in consequence of his unauthorized intermeddling.
As to the other defendants, it is manifest that they cannot be responsible, without showing they are liable to contribution, and this cannot be shown without producing the will of Henry Sheldon and making a final settlement of his estate ; which this Court, as the facts appear, is not competent to make.
Bill dismissed