Fowler v. More

By the Court, Lacy, J. This is an application to the court below to supply, by parol, a lost process. The plaintiff in error had notice of the motion, but did not appear. The clerk of the .circuit court proved the issuing,of the process, and the sheriff its service and return, more than thirty days prior to the first Monday of September, 1841, the time fixed by law for the holding of the circuit court to which such writ was returnable, and at which time judgment was rendered. The clerk testified that the form of the writ furnished, is, to the best of his knowledge and belief, a true copy of the original, which is lost;, and although he docs not state that the writ was attested by the seal of his court, yet he affixes a seal to the copy furnished, making the evidence complete as to his attestation. The sheriff also proves that he believes the copy to be a true one. Upon this proof, the court below allowed the writ to be supplied. Upon the issuing of the writ of.error, the plaintiff below gave notice of the motion. The record, thus amended, has been brought into this court. The inquiry now is, did the court below err in permitting the lost: process to be thus supplied? This point is not wholly free of difficulty, but in looking into the adjudications upon the subject, we find several precedents where a lost process, or exhibit in chancery, may be proved by parol, and in the like manner as was allowed by the court in this instance. It has been considered and treated as a mere question of practice, in which the motives and temptations of official impropriety have been weighed against the evidence of the lost rights of suitors; and, therefore, as a matter of necessity, and to prevent a failure of justice, the rule has been established that such portions of lost records as process, and the like, may be amended by substituting, upon sufficient evidence, a copy in lieu of the original,. The principle here stated docs not conflict with the doctrine laid down by the court, in the case of Smith vs. Dudley, 2 Ark. 63. Where the record exists, if denied, it can only be tried by inspection. Sts production is certainly indispensable, so long as it is suppose^ to be in existence. But if lost or destroyed, it is then competent to prove its existence by a sworn or an authenticated copy. This point is expressly decided, in Gentry vs. Hochcraft, 7 Monroe, 242; and in Craig vs. Horine, 1 Bibb, 8. And the like principle was established, in the case of Stockbridge vs. West Stockbridge, 12 Moss. 421; and While vs. Lovejoy, 3 J. R. 438;, and Hitts vs. Calvin, 14 J. R. 182. Judgment affirmed.