The Newberry herald. [volume] (Newberry, S.C.) 1865-1884, 1866-01-24


the person in whose possession the party ten
dering shall swear such document was when
he last knew of it, unless the party rendering
was himself the last person in possession,
that the same was in fact destroyed or car
ricd away, if he knows it to be SO, or if, with
out positive knowledge, that he believes it to
be so, and setting for h the facts and circum-
stances which induce such belief, if such per-
son is other than the said party in Court ten
dering the secondary evidence of contents,
and is alive and " ithin the State.
H. The plaintiff or plaintiffs, or any Of
them, in any judgement or decree, the record
whereof has been destroyed or abStIacted, or
lost during the recent war, or his personal
representative, or other person claiming un-
der or through him, or any person whatever
having interest IN the preservation Of the evil
dence of such Judgment or decree, may, upon
notice Of not less than ten days served per
sonallv upon the defendant or defendants Qf
more than one3 therein, or these upon whom
his, her or their liability Hereunder has de
volved, or others interested 20 oppose the ap-
plication, make application to Court in which
such Judgment or decree was rendered, for
leave to substitute new record; and if, upon
hearing the evidence On each side, the Court
is satisfied of the existence and loss Of such
record and order for leave to substitute ShHu
be made, aSccrtaining as near as possible the
names of all the original parties ana the
PLAINTIFF attorney, the date of the signing of
the Judgment or tllit g of the decree, (and if
in Equity, an enrolled money decree in Equl-
tv, then also the date Of the enrollment,) the
amount of the recovery, the sum bearing in
terest, and the date from which interest be-
gan to run, the balance actually due, at the
date of destruction or abstraction, and the
date Of the entry Of the original process, and
also of the last process issued for the eXccu-
ton of such Judgment. The Clerk Of the
Court of Common FlSas, the Register u
EQHity and the Ordinary in each of the Ql'-
trictS of this State in which the public re-
cords, in the custody of such officer were des-
troycd or carried away, or in any other way
lost, shall, at the cxpencc Of the funds in the
hands Of the Commissioners of Public Build
ing for his District, procure book or books
of proper size, and suitably ruled and secure
is bound to be labelled "AbstractS of lost
Judemcnts and Dec: eeS,' or "oflost DecrecS,"
as the case may be, in which he shall enter
an abstract of every such u''gment or decree,
a new record Of which shall he so ordered to
be substituted, setting out in distinct and aD-
probriatc columns all the particulars herein
before required 10 be ascertained by the or.
der Of the Court, and such entry shall, With
out other or further record, be good and sut-
Gcient in law for all purposes for which the
original record itself could have been ,"Sed,
and Of eonal authority thereWith in all res
pects. IL any c2>e prov, y,:dcd FOR: this and
in the preceding section Of this Act, if the
plaintiff, or in case Of his death, his personal
representative, shall make oath, according t.
the best of his knowledge and belief, that a
discovery from the defendant is the only
means by which such lost or destroyed re-
cord or document can be established and al
so of the former existence and Of the loss or
destruction of such record or other document,
he NAV, If the defendant, or either of them,
if more .h&n one, be living, and be within the
limits Of the State, call upon such defendant
to answer, on oath, as to the former eXls.
tcnce of such record or other document, and
as to its contents, character and DESCRIPTION,
and also as to the amount cue thereon. AND
in case such defendant, after at least ten days
personal notice, Gf he be within the District
when such proceeding is had, and twenty
davS notice IN case he is not,l shall fail to an
swer upon to4;I tie interrogatories so pro-
pounded, such failure to answer, (unless sat
isfactor;ly explained or accounted forO shall
be taken and considered as an admission by
such defendant of the truth of the facts stated
and set forth in the plaintiffs affidavit: pro-
cided, That such admission shall only affect
the party so failing to answer as aforesaid
and his legal representatives. If such .dcten-
dant shall deny on oath the former existence
of such record or other document, so attempt
ed to be set up, or shall deny on oath that
there is anything due thereon to such plain
tiff or his legal representative, or shall deny
anv other material fact alleged IN the P lain
tlf's affidavit, the answer of the defendant,
together with the affidavit Of the plaintiff,
shall be conSideced as evidence in the case,
and shall, with such other testimony as the
parties or both sides may offer, be submitted
to Court Pr0rided, That no costs shall be
taxed against the defendant for the interroga-
tories which may be propOunded to him m
der the provisions Of this Act.
III. That for the purpose of preserving
secondary evidence as may now be IN exis
! tence of the past existence, loss and contents
! or anv Of them, of such documents as have
been destroyed or lost during the recent war
the Acknowledgement or Solicitor shall, il
every District in their respective circuits, hit
"a bill to perpetuate testimony, in wmct
shall be set forth the fact that many docu
mentS, such as deeds, wills, chooses in action
and other private writings and also pubh
records and others Of any nature whatever
have been lost or destroyed during the recen
war, and that the proof of their past ez!s
tence, loss and contents, rests in the memo
ry of witnesses upon whose death the test
mony will be wholly lost. And that sue
proof may be taken and perpetuated, the ol
shall pray that an order may issue perm3ttn
all persons entitled by reason ofloss of docn
ments under such circumstances, and teSirln
to do so, to come before the Court and ha7
taken and perpetuated all evidence whlc
they shall produce.
~. That in the filing of such bill, tn
Master or Commissioner shall make an orde
in conformity with the prayer thereof, whic
shall be published by being posted on II
! Court House door and printed in one new
paper, i any such there be in the DlStrlc
once a week for two months and if there
no paper published in the District, then
Charleston or Columbia.
e Y. Upcn tbe filing Of such bill, any, pc
$ son or persons interested in preserving the
:, :dcnce Of the contents of any such documer