Booth v. Smith

WOODS, Circuit Judge. The exception must be sustained. Applying the rule that a pleading should be most strongly construed against the pleader, the petition in effect avers a voluntary destruction by the plaintiff of the evidence of the debt, to recover which his suit is brought. In such a case there can be no recovery, based either on the instrument itself or on the debt, which was the consideration for which the instrument was given: Angel v. Felton, 8 Johns. 149; Vanauken v. Hornbeck, 2 Green [14 N. J. Law] 179; Fisher v. Mershon, 3 Bibb. 527; Blade v. Noland, 12 Wend. 173; Joannes v. Bennett, 5 Allen, 173; Broadwell v. Stiles, 3 Halst. [8 N. J. Law] 58; Rev. Civil Code, art. 2279; Code. Nap. art. 1348; Nagel v. Mignot, 7 Mart. [La.] 657. Judgment accordingly.