Opinion
(December Term, 1838.)
The owner of a single bill or bond for the payment of money, destroyed by accident, may in equity recover the principal and interest due on it, upon tendering bond and security to the defendant to indemnify him against any liability that may afterwards arise concerning the said obligation.
THE bill stated that Saunders Meredith, in consideration of goods, wares, and merchandise sold and delivered to him, executed to the plaintiff a single bill for $189.12 on 25 May, 1827, and payable one day after date; and that the obligation had been since destroyed by accident. The prayer was for a discovery, and also for relief in the payment of the amount of the obligation with the interest accrued thereon. To his bill the plaintiff annexed an affidavit of the truth of the facts set forth in it.
No counsel appeared for either party in this Court.
The answer of the administrator of Meredith admitted nothing, and put the plaintiff upon full proof of his case; nor did it admit or deny assets to satisfy a decree if the plaintiff should obtain one.
We have examined the evidence, and the proofs are sufficient to satisfy us that the defendant's intestate did execute to the plaintiff the obligation mentioned in the bill, for the consideration therein stated, and for the sum of $189.12, payable one day after date, and dated 25 May, 1827. There is no proof that the said obligation has ever been paid. Plaintiff has appended to his bill an affidavit that the debt is unpaid and that the obligation has been destroyed by accident, and there is strong corroborating proof of the truth of this affidavit. We are of opinion that he is entitled to a decree for $189.12, principal money, and interest on the same, to be computed from 26 May, 1827, on tendering to the defendant a bond with security to indemnify the estate of his intestate against any liability which may hereafter arise concerning the said supposed lost bond. But before the decree can be rendered there must be an inquiry and report as to the amount of assets in the hands of the defendant, unless he waive such inquiry. (123)
PER CURIAM. Direct accordingly.
Cited: Carter v. Jones, 40 N.C. 199; Fisher v. Carroll, 41 N.C. 488.