32 Ga. 215 | Ga. | 1861
delivering the opinion.
The defendant in error proceeded, simultaneously, (under the Act of 5th March, 1856, Pamph., 238), to establish a copy of a bill of exchange drawn by plaintiff in error, and to institute suit against said drawer, on the lost paper.
The bill was drawn upon Sims & Cheever, and by them accepted, and had been noted for non-payment.
On the trial of this case, the plaintiff below offered in evidence a certified exemplification of the proceeding to establish a copy of said lost draft, or bill of exchange. Erom this exemplification, it appeared that a formal order had been passed nem. eon., establishing a copy thereof. But it also appeared that Sims & Cheever, the acceptors, had not been made parties to that proceeding, and were, therefore, not bound by the judgment of the Court establishing it. In other words, there had been no copy of the lost paper established as to them.
On this ground, the evidence offered was demurred to. The Judge overruled the demurrer, first, on the ground that the acceptors were not necessary parties to the exemplified proceeding; and secondly, on the ground that the objection came too late; should have been taken against the passage of the order in the exemplified proceeding, and this is the judgment excepted to.
The object of the proceeding, under the Act of 1856, was to establish a copy of a lost paper, and that was the authority conferred by the act.
What was the lost paper ? It was a draft or bill of exchange, drawn by Bond, the plaintiff in error, in favor of defendant in error, upon Sims & Cheever, by them accepted, and afterwards protested for non-payment. Such was the paper when lost. The proposition will scarcely be denied, that in legal contemplation, the established copy must have all the essential elements of the lost original. If it be a negotiable commercial security, the copy must specify the sum of money to be paid, and the time of payment. It must
It is no answer to say that it was established against Bond, who was the only party défendant below. The privilege given by the Act of 1856, to the party losing the original, is to establish a copy of it, and then to use that copy as he
But it is said this exception comes too late; that the plaintiff in error should have taken it in the proceeding, the exemplification of which was here tendered in evidence. In our view, this is no reply. We think there is an inherent defect in this paper, originating in the failure of the defendant in error to comply with the requisitions of the remedial Act of 1856, the aid of which he invokes. In this case he has chosen to rely, as his cause of action, upon a copy of a lost paper, established under the Act of 1856, but when he offers his evidence, it appears upon its face that it is pot an established copy of the lost original. He might have made it so, but he did not. Having failed to comply with the requisitions of the act, he cannot claim its benefit. The judgment of the Court below must be reversed.
Judgment reversed.