Temple v. Gove

Weight, O. J. There is no testimony, whatever to sustain this decree. To go no further, we remark that one fatal defect consists in an entire want of proof as to the loss of tlie note. There is no evidence in the case, except the deposition of Dobney, the payee of the note, who swears alone to the execution of the note and its transfer. The ground upon which such a bill is maintainable is, that complainant seeks to obtain a discovery from respondent of an instrument, lost or destroyed, and also relief consequent upon the discovery. The bill itself is required to state, that without the desired discovery, the party has not sufficient evidence to maintain a suit at law, and of course should state the loss or destruction. If the instrument is not lost, or if the complainant has other sufficient evidence to establish its contents, his proper remedy is at law. Story’s Eq. PL, secs. 304, 313, 713, 288; Finley v. Hinde, 1 Pet., 244; Milf. Ch. Pl., 124, 125 ; Walmsley v. Child, 1 Ves., 342 ; Livingston v. Livingston, 4 Johns. Ch., 294, Decree reversed.