Pennington v. Governor

1 Blackf. 78, 1820 Ind. LEXIS 17

• Court: Indiana Supreme Court
• Decided: August 3, 1820
• Status: Published

Opinion

Scott, J.

In case of lost bonds, Courts of Equity have made a distinction between bills brought for a discovery only, and those in which there is a prayer for relief beyond the discovery; as in this case, for the payment of money. Although the Courts do not refuse the relief prayed for in either case; yet where the hill is for the amount specified in the bond alleged to be lost, they will prescribe certain conditions, on which the relief will be administered

(1). The established rule in such cases is, that an affidavit of the loss must be annexed to the bill; and this has been considered indispensable. 1 Madd. Ch. 26, 27. We think the want of an affidavit in this case a fatal defect, for which the proceedings must be set aside.'

Holman, J., was absent in consequence of indisposition.

Per Curiam.

The decree is reversed, and the bill dismissed.

The idea once prevailed, that no recovery at law could be had on a lost bond, proferí and oyer being indispensable: hence, the Chancellor’s jurisdiction. Read v. Brookman, 3 T. R. 151, dispenses with proferi in such cases, and permits a recovery at law; but Courts of Equity still retain jurisdiction. —Proferi and over having never been required in actions at law on lost notes, proving the contents being sufficient, and nothing standing in the plaintiffs way, no relief in these cases is given in Equity. 1 Madd. Ch. 25, 26.