1 Ala. 452 | Ala. | 1840
The statute of I828, respecting lost bonds, rules, &c. [Aikins’ Pigest, 329] does not change the rules of pleading in the ease of a lost instrument; it provides ,! that when any person may have or own, or may have owned any bond, &c. the right or title to the same remaining in him, and the same shall be or have been, destroyed by fire, or lost, by accident, he shall be authorized, opon first making oath in writing, of the loss of the bond, &c. and that the same has not been paid, satisfied, or discharged, to :sueat common law, and recover upon the same, on making proof of the contents of such bond, &e. so lost or destroyed. It is ••apparent, from this recital of the act, that if any change whatever was made of the law as understood at its passage, that the pleadings remain precisely as before. A party is not without a remedy, although he may not be able to state the date or other description of a lost note, with certainty and precision. Nor would the fact that the evidence also was uncertain, as to such a matter debar him from a verdict on the common counts, if the jury was satisfied of the amount remaining due, and of the distinction of the instrument or of its loss, if the adverse party •could not be injured, by its afterwards coming to the possession of another. We think it was incumbent on the plaintiff, when he framed the first count of his declaration, on the note, to aver its description with the same certainty as in other cases; the allegations of the loss of the note and of the filing of the affidavit,
As the judgment is necessarily reversed on the point previously mentioned, we need not examine the amount of the verdict to ascertain whether injury has or has not been done, and sufficient has been said to prevent a recurrence of a similar charge.
For the error in overruling the demurrer to the first count of the declaration the judgment is reversed and the cause remanded.