Gwathney v. Stump

delivered the following opinion of the court.

This was an action of covenant, The declaration states that the plaintiff had fraudulently obtained possession of the obligation, so that profert cannot be made; to which there was a demurrer, assigning for causes, first, want of profert. Second, an action at law cannot be maintained. The circuit court overruled the demurrer and awarded a writ of inquiry, which was executed at the subsequent term; verdict and judgment for $150.

It is admitted in argument, that it has never been decided in this state, that an action at law can be supported on a lost…