
    Carter vs. Vaulx.
    Lost instrument. Affidavit of loss. Demurrer. In an action of debt upon a lost instrument under the act of 1819, cb. 27, the affidavit of the loss, appended to the declaration, is made a part of the record, and is to be taken as a substitute for profert of the instrument; hence, the sufficiency and validity of the declaration, including the affidavit, may be tested by demurrer.
    Same. Same. The affidavit, required by the statute to be made when the action is upon a lost instrument, must be verified before the court in which the action is brought; must also state that the note has not been sold or assigned, and must be made by the plaintiff, or his agent, or attorney, into whose bands the note has been committed, and by whom it has been lost, or mislaid.
    This was an action of debt in the circuit court of Haywood county. At the June Term, 1852, Read, Judge, presiding, there was judgment for the defendant, and the plaintiff appealed in error.
    Read & Suapard, for plaintiff in error.
    T. GL & W. M. Smith, for defendant, in error,
    argued: A demurrer was proper. By the act of 1819, ch. 27, C. & N., 417, it is provided that the affidavit-shall be attached to the declaration; and in the case of Powers vs. Fitzhugh, 10 Humph., 415-417, it is said that “the affidavit forms part of the record of the cause.” When an' instrument is set out after oyer craved it becomes a part of the declaration, and is subject to demurrer; 1 Chit. PL, 665-666; Jones vs. Simmons, 4 Humph., 314. The affidavit takes the place of an instrument set out after oyer, and thus becomes part of the record. If this were not so it could never be made part of the record, for it is not necessary to make profert of the affidavit, and oyer cannot be craved unless profert is made; Stephen’s PL, 69.
    The case of Kincaid vs. Francis, Cooke’s Rep., 49-53, decides that an affidavit .accompanying a declaration, becomes part of the record, and that it is not necessary to crave oyer of it. If it was not necessary in this case to crave oyer of the affidavit, it was necessary that profert should have been made of it; and the declaration is demurrable on this ground, and the fault is reached by this demurrer; Stephen’s PL, 141.
    The affidavits are not made in accordance with the statute, which, as it gives a new remedy, must be strictly followed;' Powers vs. Fitzhugh, 10 Humph., 417; Peck, 172.
   TotteN J.,

delivered the opinion of the court.

Debt on a lost note for eleven hundred dollars. A demurrer to the declaration was sustained, and plaintiff has appealed in error to this court.

The declaration is formal. Two affidavits of the loss of the note are annexed to the declaration; one by (.1. M. Eogg, stating that he had mailed said note at Nashville, to the address of E. J. Bead, and it is verified before a justice at Nashville; the other is by said Bead, to the effect that said note never came to his possession, and that he believes it has been lost or miscarried in the mail.

The Act of 1819, ch. 27, gives a remedy at law on lost instruments, but requires an affidavit of the loss, and that the instrument has not been sold or assigned to another. The . affidavit is to be verified before the court where the suit is instituted, to be annexed to, and filed with the declaration. It “forms part of the record;’’ 10 Humph. B., 415; Cook’s B., 49; it is to be taken as a substitute for gyrofert and oyer of the instrument, .and, in effect, becomes incorporated in, and forms part of tbe declaration. Tbe demurrer is, therefore, a proper and convenient mode to test tbe sufficiency and validity of tbe declaration including tbe affidavit. It is true, that a more technical rule might require the substance of tbe affidavit to be stated in tbe declaration itself; as, that tbe instrument was lost, and that it bad not been assigned. But such strictness has not been usual in practice; and we do not deem it material to require it, as tbe principal matter under tbe statute is tbe affidavit itself. Here, tbe declaration avers tbe loss of the instrument, but omits to aver that it bad not been assigned.

2. Tbe affidavits are bad. Mr. Eogg’s is not verified before the court, as required by tbe statute, and is otherwise defective. Mr. Bead’s is defective in not stating that the note has not been sold or assigned. It is obvious, likewise, that Mr. Bead can make no affidavit in tbe case, as tbe note never came to bis hands, and be knows nothing of its existence or its loss. But we think it would be competent for an agent or attorney, into whose possession tbe instrument bad actually como, and by him been lost or mislaid, to make tbe affidavit under the statute; because be represents the plaintiff, and is tbe only person to whom tbe facts are actually known. And so, a plea in abatement may be verified by an agent or attorney, if tbe facts stated in tbe plea be within bis personal knowledge; Bank of Tenn. vs. Jones, 1 Swan’s Rep., 391.

3. We may observe further, that tbe remedy at law, under the statute, does not supercede, tbe former remedy in equity. That remains as it was' before.

Judgment affirmed.  