Opinion
May 1814.
Where the object of a bill is to discover the contents of a paper alleged to be lost, or in the hands of the defendant; and, after such discovery, to have a decree for the amount due the complainant, an affidavit must be filed with the bill, and the omission will be fatal on demurrer.
A bill for discovery only need not be sworn to.
In Equity. —
This is a bill for discovery and relief, to which Stephens has demurred, because the complainant has filed no affidavit with his bill.
Where the object of a bill is to discover the contents of a paper alleged to be lost or in the hands of the defendant, and after such discovery to have a decree for the amount due the complainant, an affidavit ought to be filed with the bill; because, if the paper was in the complainant's own possession, his remedy upon it would be at law; and as the complainant wishes in equity that relief which, except for the loss of the paper, he would be entitled to at law, he ought to render it probable, by ids affidavit, that he had in truth lost the possession of the evidence of his right, as is represented in his bill. If the bill sought a discovery only, the affidavit would be unnecessary. As there is no affidavit, the demurrer must be allowed. 1 Ver. 180; Mitf. 112; 3 Atk. 17, 132; Hy. Ch. 155; 1 P. Wms. 541; 1 Ver. 342.