¶1In 1 Greenleaf on Evidence, it is stated that if the instrument is lost the party is required to give some evidence that the paper once existed, though slight evidence is sufficient for this purpose ; and that a bona fide and diligent search for it has been made unsuccessfully in the place where it was most likely to be found, if the nature of the case admits of such proof, after which his own affidavit is admissible to the facts of its loss.
¶2In regard to the order of the proof, namely: whether the existence and genuineness of the paper, and of course its general character and contents, must be proved before any evidence can be received of its loss, the decisions are not uniform. In this case proof of the loss of the bond was first offered, and was sufficient to authorize proof of its existence and contents.
¶3It cannot be admitted that by the decision, when the cause was previously before this Court, (16 Tex. R. 541,) the plaintiff was inhibited from offering an additional affidavit of the loss of the instrument. There was a difference of opinion between the Court below and this Court, as to the sufficiency of the former affidavit, and the impolicy of allowing additional affidavits is the subject of comment. But to deprive a party of his rights for want of sufficient minuteness of an affidavit would be an intolerable hardship. The defect of the former was its vagueness. It stated the substantial fact of diligent search, but not the place or places in which it was made.
¶4No special standard was prescribed for an additional affidavit, and the plaintiff had no temptation to fill up a particular measure by his oath. We cannot hold that the plaintiff was forever precluded from the want of sufficient fullness in the original affidavit. The main facts to be established were the existence and contents of the bond. The best evidence of this was the bond itself; but in the absence of this, parol proof or secondary evidence was sufficient. The fact of the loss is not so material as the existence or contents of the paper.
¶5We are of opinion that .there was no error in overruling *434the objection to the affidavits. Whether the existence and contents of the bond, and payment of the purchase money,, were sufficiently proven, was for the jury to determine. Their verdict was for the plaintiff, and cannot be disturbed on the ground that it was without or against evidence. Judgment affirmed.
¶6Judgment affirmed.