Robinson v. Curry , 6 Ala. 842 ( 1844 )

GOLDTIIWAITE, J.

The excuse alleged in this declaration for the omission to make profert, traces the bill single to the possession of the defendant, and avers that possession to be tor-tious. It does not differ, in any respect, from Totty v. Nesbitt, [3 Term, 154,] or Mattison v. Atkinson, [ib.] In the first of these cases, the defendant had admitted in his answer to a bill in chancery, that he had executed the bond, and that it had been discharged by him; and in the other, the defendant had obtained and cancelled the bond under an award of arbitrators, which af-terwards was set aside. We do not perceive that any substantial reason exists why a party from whom the obligor unlawfully withholds a bill single, should be driven to his action of trover to recover damages for the conversion, instead of an'action of debt, directly upon it.

It is supposed, however, that the statute requiring an affidavit to be filed when suit is commenced on a lost note or other instrument, [Clay’s Digest, 333, § 112,] applies to this case. We think otherwise; because it seems to us the object of that statute is to furnish information to the other party of the loss of the instrument. Here, however, the affidavit would advise the defendants of no facts which they were not already apprised of.

We think the declaration unobjectionable on demurrer; and, therefore, the judgment is reversed, and the cause remanded.