Glover v. Rainey

2 Ala. 727 | Ala. | 1841

ORMOND, J.

— In Dozier v. Joyce, 8 Porter, 303, and in Williams v. Powell, 9 Porter, 493, this Court laid down the rules for the substitution of lost papers from the files, and that this right existed as well after as before judgment; and could be done pending a writ of error. In this case, the bill is lost or has been abstracted from, the file of papers in the cause, and no attempt has been' made.or offer to supply its place; indeed the counsel for the defendant in. error, admits his inability to do: so. 1 -

'In this aspect of the case, it is impossible to sustain the decree; without the bill it is impossible to know, with any approach to certainty, what the nature of the claim asserted against the defendant is; and without knowledge on this head, ho'wcaffit be'ascertained whether the report of the Master, made as it must have been, if correctly made, on proof of the allegations of the bill, is correct or not. It is true, it may be conjectured what the allegations were from the answer, and othei facts of the cause; but any decision, based on such data, would be deficient in that certainty, which is necessary in all judicial proceedings.

The decree is, therefore, reversed and the bill dismissed; but without prejudice to any suit, which the defendant in error, may think proper to institute.