13 Ala. 544 | Ala. | 1848
The indorsement of the cause of action on the writ was sufficiently broad to authorize any form of declaring under which the lost bills could be recovered. The statute of 1828, “ regulating judicial proceedings,” and which prescribes the manner in which lost notes, &c., may be sued on at law, it has been decided is merely cumulative, and that it is competent to proceed in such cases as the common law courts entertained jurisdiction of, without the previous affidavit: Further, that where the security lost was negotiable, either by indorsement or delivery, if it appeared that it was destroyed, so that the party liable to pay it, could never be called on by any third person, the party entitled could sue at law, and upon proper proof recover the amount. The Branch Bank of Mobile v. Tillman, at the last term; Hutchings’s Adm’r v. The Branch Bank at Decatur, at this term.
The question, whether the bills were so lost that they could never be presented to the bank for payment, was certainly an inquiry of fact, and was referred to the jury in intelligible and appropriate terms. It was then competent for the plaintiff to have instituted his action in the form in
There is no want of adaptation of the declaration to the case made by the proof. If the bills were in existence, they could have been given in evidence under the common counts in assumpsit. This is abundantly shown by the citations made by the defendant in error. And their contents, title of the plaintiff, and irrecoverable loss, being shown, it is clear, that the plaintiff might recover under a similar declaration. What we have said is decisive of the cause, and it remains but to add, that the judgment must be affirmed.