Mayor of Savannah v. Burroughs , 36 Ga. 212 ( 1867 )

Warner, C. J.

That the Superior Courts in this State have the power and authority to require indemnity where lost papers are sought to be established, under such rules and precautions as are or may have been customary, and according to law and equity, cannot be doubted; but the question to be decided in this case is, what does the law require ? Does the existing law require, or is it “according to law” that indemnity shall be given by the party seeking to establish a copy of a lost bond or note, before he is entitled to the judgment of the Court in his favor? The Act of 7th March, 1866, furnishes the conclusive answer to this inquiry: that Act, not violating the Constitution, is, in our judgment, the law applicable to this question, and must control it.

This Act was passed in view of the then condition of the country, and was intended to give to parties whose papers had been lost or destroyed a summary remedy to establish copies thereof, to “be used in any Court of this State in lieu of the lost original.” There is, however, by the second section of the Act, a precautionary rule adopted for the protection of the makers of the original papers alleged to have been lost or destroyed. The second section of the Act dedares, “That if any party who is liable for the payment of said lost paper in whole or in part, or whose interests are affected by the establishment of said paper, shall make oath that the said paper never existed, or that the same has been paid off or discharged, the party seeking to establish the same in the summary manner herein provided, shall be remitted to the remedies heretofore provided by law.” The evidence exhibited by the record in this case is very strong, that the original bonds were destroyed. There being no oath made in this case as allowed by the second section of the Act, and the petitioner having complied with the requirements of the first section, she was entitled to have the copy bonds established in accordance with the terms and provisions thereof. Let the judgment of the Court below be affirmed.