Bell v. Moore
Supreme Court of Alabama
Error to the Circuit Court of Cherokee. Assumpsit by Bell, suing for the use of Croach, as the assignee of a promissory note made by Moore, and payable to one Mangum, or order.
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Error to the Circuit Court of Cherokee. Assumpsit by Bell, suing for the use of Croach, as the assignee of a promissory note made by Moore, and payable to one Mangum, or order. The declaration is in the usual form, except that after the super se assumpsit is this allegation r “ Which said promissory note the said plaintiff has since lost, and to the loss of which said note, the said plaintiff did, on the 29th April, 1841, make oath in due form of law, in such case made and provided.” The writ was issued 8th November, 1841. The defendant demurred — the court sustaining the demurrer, final…
1Opinion of the CourtGoldthwaite, J.
It has been repeatedly held in this court, that the act of 1828, giving the courts of common laAV jurisdiction of suits on lost notes, (Dig. 382, § 9,) is merely an affirmance of the common laAV. [Chaudron v. Hunt, 3 Stewart, 31; Porter v. Nash, 1 Ala. Rep. N. S. 452.] It is true, if the party chooses to risk the consequences, he may declare in the ordinary mode, although the instrument is lost, but Ave apprehend if he will so declare he Avould be within the 8th rule of practice, providing for the production, upon notice, of any instrument declared on as the foundation of the' action. [Dig.…
2Cases cited3 opinions
- Martin v. DortchSupreme Court of Alabama · 1828
- Chaudron v. Hunt & NorrisSupreme Court of Alabama · 1830
- Robinson v. CurrySupreme Court of Alabama · 1844
3Cited by2 opinions
- Young v. DavisSupreme Court of Alabama · 1857
- Smith v. AwbreySupreme Court of Alabama · 1851