36 Ga. 212 | Ga. | 1867
Lead Opinion
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 de
Dissenting Opinion
dissenting:
I regret that I cannot concur with my associates in the judgment rendered in this case! When it was argued last December, the then Court differed very essentially in reference to the several acts of the Legislature, passed since the Judiciary Act of 1799, touching the establishment of lost papers.
By the sixth section of the Act of 1799, it was enacted “that the said Courts respectively shall have power and authority to establish copies of lost papers, deeds or other writings, under such rules and precautions as are or may have been customary and according to law and equity.” I entertained then and now the opinion that the power thus conferred contained within it necessarily the power to require indemnity to be given by a party seeking to establish a copy of a lost security for the payment of money — that this power to require indemnity was unaffected by the Act of 1866, or by any and all of the acts passed since 1799 — that these acts were made only to facilitate and provide for a summary or
At the June term, 1867, the case not having been decided, (Judge Warner having succeeded Judge Lumpkin,) was brought up for final consideration. The Court were then unanimous in the distinct recognition of the general power of the Superior Courts to require indemnity, and that that power was unaffected by the Act of 1866.
I entertain the view, that in the establishment of money securities,' indemnity should be required at the time when copies are sought to be established, otherwise it will fail to protect obligors, and will prove illusory — thus, suppose the established copy bonds and coupons get into the hands of bona fide purchasers without notice, how can such holders when calling for payment be required to enter into any indemnifying bond without the violation of all principle ? Thus the obligors, if the original bonds and coupons are in existence, (as I think probable, for the evidence does not convince me that they were burned,) will be bound to pay them to bona fide holders. Of these last, no indemnity can be exacted. The result will be, from a failure to require indemnity when the copy bonds and coupons were established, the obligors are exposed to a double payment, and have no protection against such palpable injustice.
I therefore dissent from the judgment rendered.
