Lost

OR NOT LOST. A phrase in policies of insurance, signifying the contract to be retrospective and applicable to any loss within the specified risk, provided the same is not already known to either of the parties, and that neither has any knowledge or information not equally obvious or known to the other. The clause has been adopted only in maritime insurance; though a fire or life policy is not unfrequently retrospective, or under a different phraseology, by a provision that the risk is to commence at some time prior to its date. 1 Phil. Ins. § 925.

OR NOT LOST. A phrase in policies of Insurance, signifying the contract to be retrospective and applicable to any loss within the specified risk, provided the same is not already known to either of the parties, and that neither has any knowledge or information not equally obvious or known to the other. The clause has been adopted only in maritime insurance; though a fire or life policy is not infrequently retrospective, or, under a different phraseology, by a provision that the risk is to commence at some time prior to its date. 1 Phill. Ins. 8 925. Such policy on a vessel building “to take effect as soon as water-borne,” takes effect at once if she is already water-borne; Cobb V. Ins. Co., 6 Gray (Mass.) 192. >

An article is "lost" when the owner has lost the possession or custody of it, involuntarily and by any means, but more particularly by accident or his own negligence or forgetfulness, and when he is ignorant of its whereabouts or cannot recover it by an ordinarily diligent search. See State Sav. Bank v. Bnhl, 129 Mich. 193, 88 N. W. 471, 56 In It. A. 944; Belote v. State, 36 Miss. 120, 72 Am. Dec. 163;' Hoagland v. Amusement Co., 170 Mo. 335, 70 S. W. 878, 94 Am. St. Rep. 740. As applied to ships and vessels, the term means "lust at sea," and a vessel lost is one that has totally gone from the owners against their will, so that they know nothing of it, whether it still exists or not, or one which they know is no longer within their use and control, either in consequence of capture by enemies or pirates, or an unknown foundering, or sinking by a known storm, or collision, or destruction by shipwreck. Bennett v. Garlock, 10 Hun (N. Y.) 338; Collard v. Eddy, 17 Mo. 355; Insurance Co. v. Gossler, 7 Fed. Cas. ,406.

— Lost or not lost. A phrase sometimes inserted in policies of marine insurance to signify that the contract is meant to relate back to the beginning of a voyage now in progress, or to some other antecedent time, and to be valid and effectual even if, at the moment of executing the policy, the vessel should have already perished by some of the perils insured against, provided that neither party has knowledge of that fact or any advantage over the other in the way of superior means of information. See Hooper v. Robinson, 98 U. S. 537, 25 L. Ed. 2l9; Insurance Co. v. Folsom, 18 Wall. 251, 21 L. Ed. 827.

— Lost papers. Papers which have been so mislaid that they cannot be found after diligent search.

— Lost property. Property which the owner has involuntarily parted with and does not know where to find or recover it, not including property which he has intentionally concealed or deposited in a secret place for safe-keeping. See Sovern v. Yoran, 16 Or. 269, 20 Pac. 100, 8 Am. St. Rep 293; Pritchett v. State, 2 Sneed (Tenn) 288, 62 Am. Dec. 468; State v. Cummings, 33 Co.nn. 260, 89 Am. Dec. 208; Loucks v. Gallogly, 1 Misc. Rep. 22, 23 N. Y. Supp. 126; Danielson v. Roberts, 44 Or. 108, 74 Pac. 913, 65 In R. A. 526, 102 Am. St. Rep 627.

1. The finder of lost property has a valid claim against all persons but the true owner. See further Find, 1. 2. The contents of any written instrument lost, or destroyed, may be proved by competent evidence. Judicial records and all other kinds of documents of a kindred nature are within the rule.* If a note has been destroyed by fire, it may be said to be "lost." * If a bill of exchange or a promissory note, indorsed in blank and payable to bearer, be lost or stolen, and be purchased in good faith without Imowledge of want of ownership in the vendor, the holder's title is good.* The rule is otherwise as to a bill of lading, q. v. A lost will may be established by evidence, as in the case of a lo.<it deed, all persons interested being first made parties. The declarations of the testator may be shown, as well to establish its contents as to show the improbability of its destrtiction by him. The burden is on the party alleging that a will existed, to prove its execution and contents by strong, positive, and convincing evidence.^ Although a will is required to be attested by two witnesses, a lost will may be established by the testi- ' Scottish Mar. Ins. Co. v. Turner, 20 E. L. & E. 42 (1853), Ld. Thuro. ' Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 546 (1876); 86 Md. 102. ' Knickerbocker Life Ins. Co. v. Pendleton, 112 U. S. 709 (1885), cases. * Burton v. Driggo, 20 Wall. 134 (1873), cases; 18 How. 246; 11 Wall. 672. » Mc Gregory v. Mc Gregory, 107 Mass. 643 (1871). • Shaw V. North Pennsylvania R. Co., 101 U. S. 564 (1879), Strong, J. See Adams v. Edmimds, 65 Vt. 352 mony of a single witness; and probate may be granted to the extent to which the provisions are proved.^ When an abstract or summary of a lost or destroyed record, deed, deposition, will, or other instrument is offered as the best evidence obtainable, the witness must be sufficiently acquainted with the original, and the court be satisfied that the original is non-producible, and evidence if produced. The loss may be inferentially proved, or admitted. A probable custodian must be inquired of, and search in the proper place be proved — the decree of search being proportioned to the importance of the document.^ The maliier of paper which has become lost is liable to the owner, after notice of the loss, if he redeems the paper without requiring the holder to establish his title. The holder should be required to furnish indemnity against other claimants.' See Deposit, Certificate of; Evidence, Secondary; Profert.

A deed voluntarily destroyed by the grantee is not lost, within the rule which would allow him to prove the contents by secondary evidence. Thompson v. Thompson, 9 Ind. 32.3. An allegation that a note has been lost is fully supported by proof that it has been destroyed by Are. Mc Gregory v. Mc Gregory, 107 Mass. 543.