Jenkins v. Forbes

• Court: Georgia Supreme Court
• Writing for the Court: FISH
• Citation: Jenkins v. Forbes, 121 Ga. 383, 49 S.E. 284 (Ga. 1904)
• Decision Date: 09 December 1904
• Parties: JENKINS v. FORBES.

49 S.E. 284

121 Ga. 383

JENKINS

v.FORBES.

Supreme Court of Georgia.

Dec. 9, 1904.

ACTION ON LOST NOTE—PAYMENT—PLEADING.

1. In an action upon an established copy of a lost promissory note, payment made prior to the judgment establishing the copy may be pleaded.

(Syllabus by the Court.)

Error from Superior Court Floyd County; W. M. Henry, Judge.

Action by E. E. Forbes against V. D. Jenkins. Judgment for plaintiff, and defendant brings error. Reversed.

Moses Wright for plaintiff in error.

M. B. Eubanks, for defendant in error.

FISH, P. J. The only question presented by this record is whether, in an action upon a copy of a promissory note, regularly established in lieu of the lost original as provided by statute, the defendant can plead payment of the original note made prior to the judgment establishing the copy. In our opinion, such defense can be made. A copy established in lieu of the lost note has all the force and effect of the original. Civ. Code 1895, §§ 4751, 4754. But the established copy is no more binding than the original. In Venable v. Born, 40 Ga. 74, which was a proceeding to establish a lost promissory note, it was held that the fact that the consideration of the lost note was a slave did not impair the right of the owner of the note to establish a copy of thesame by a proper statutory proceeding. "The establishment of a lost note under the statute is no bar to any defense that might be set up to the original note." Prescott v. Johnson, 8 Fla. 391. In this connection, see Suwannee County Commissioners v. Columbia County, 18 Pla 78; Rockwell v. Servant, 54 111. 251. What was said in Vaughn v. Drewry, 79 Ga. 761, 4 S. E. 879, in so far as it conflicts with the ruling we now...