Lost Instrument

A document or paper which has been so u)lslald that it cannot be found after diligent search. Suits to recover upon lost instiniraents are within the Jurisdiction of equity, but the proof as to the contents must be clear and satisfactory, Fries v Grlf Hn, 35 Fla 212, 17 South. 60; and such a suit will not be enteitalned to establish the lost instrument merely as a piece of written evidence to sustain an action of tort; Security Savings & Loan Ass’n v. Buchanan, 66 Fed. 799, 14 C. C. A. 97. This equitable Jurisdiction extends to ordering the issue of bonds to replace those lost, where the loss or destruction was wlth * out fault of the party seeking relief; and it can be done without derogating from positive agreement or violating equal or superior equities in other parties. Such relief was given in case of bonds stolen and bidden in the ground at the evacuation of Petersburg by the Confederate forces, Chesapeake & 0 Canal Co v Blair, 45 Md 102; and for bonds stolen from the vault of a bank, Force v City of Elizabeth, 27 N. J. Eq. 408. A copy of a deed by Joint makers cannot be established without proof of execution by all; Neely v Carter, 96 Qa 197, 23 S B. 313; and wherever it is sought to establish title to real property under a lost unrecorded deed, the rule as to the amount of evidence required is very strict, Day v. Philbrook, 89 Me. 462, 36 Atl 991 Formerly in such cases a resort to equity was compelled by the want of any remedy at law, resulting from the necessity of making profert; 1 Ch. Cas 77; but after profert was dispensed with, the courts of law acquired concurrent Jurisdiction and the loss of a paper would not prevent recovery; 1 Ves. 341; 3 V. & B. 54. Nevertheless a court of equity still has Jurisdiction to establish a lost deed; Simmons Creek Coal Co. V. Doran, 142 U. S. 417, 12 Sup Ct. 239, 35 L. Ed. 1063 The fact that interest on a bond Is payable upon “presentation and delivery of the N. T. Supp. 650. Where a note is lost pending an action while in the hands of the Justice, indemnity is not required; Winship v. May, 7 Colo. App. 365, 43 Pac. 904, and an allegation of loss after maturity of a note sued on, dispenses with the necessity of tender of Indemnity; Swatts v Bowen, 141 Ind. 322, 40 N. E. 1057. An action may be brought on a lost official bond. People v. Pace, 67 111. App 674. In an action for the breach of a lost contract, where the fact of its existence is controverted, it Is a question for the Jury: Thomas v. Ribble (Va.) 24 S. E. 241. It is held that an action will He upon a lost negotiable instrument, 10 Ad. & B. 616; Whitesides v Wallace, 2 Speers, L. (S. O.) 193 The weight of authority seems to be that an action would not lie on a lost negotiable note; 1 Bxch. 167; 9 id. 604; Moses V Trice, 21 Gratt (Va.) 666, 8 Am. Rep 600, Chancy v Baldwin, 46 N. C. 78; Willis v. Cresey, 17 Me 9; Butler v. Joyce, 20 Dist Col 101 (distinguishing Boteler v. Dexter, 20 D C 26, where the action was maintained on a note accidentally lost after being In evidence in that court), contra, Anderson v. Robf,< n, 2 Bay (S C ) 495; Robinson v. Bank, 18 Ga 66; Abom v. Bosworth, 1 R. I. 401; Meeker v. Jackson, 3 Yeates (Pa.) 442; but see comments on these cases, 16 L. It. A. 305, note In some courts the suit has been permitted upon giving indemnity, Bridgeford V Mfg. Co, 84 Conn. 546, 91 Am. Dec. 744; Lewis V Petayvin, 4 Mart N S. (La.) 4; Fales V. Bussell, 16 Pick. (Mass.) 316. It will not lie if the owner has destroyed it; Booth V Smith, Fed. Cas. Na 1,649. In a case at law on a lost lottery ticket, it was held: “There never was a time when a recovery might not be had In a court of common law on an unsealed security which was proved to be detttoyed The case of a bond did not depend ou the difference between loss and destruction, but on the necessity that once existed, of making a profert of the instrument, to enable the defendant to have oyer of it; and as this could not be done at law, where the bond was either lost or destroyed, the chancellor was forced to assume Jurisdiction,.. and the exercise of this equitable Jurisdiction is still continued, although the common law courts allow loss or destruction to be pleaded as an available excuse for the want of profert. But in the case of a note, bill, check, or other simple contract security, oyer cannot be demanded, and you may therefore recover by proving the contents. With respect to a negotiable security paper which passes by mere delivery and which is not destroyed but lost, the remedy is always in chancery, om terms of giving security. By the express term of the ticket (a lottery ticket), whatever prize should be drawn opposite to Its number, was production of the ticket itself; or as an equivalent, in case of its loss, security against damage from payment being made without having it delivered up. Tender of indemnity, therefore, was a substantial part of the plaintiff’s title, and no right of action would accrue, till it were made; the sufficiency of the security being a matter to be Judged of at the trial. Equity may dispense with tender before bill filed, because complete Justice may be done by prescribing it at any time, as the terms of relief; but in a court of law proceeding to administer equity, according to the forms of the common law, a plaintiff suing without a previous tender presents the ordinary case of a suit bi*ought before the cause of action is complete.” Per Gibson, J., in Snyder v. Wolfley, 8 S. & R. (Pa.) 331. In some states and in England it is provided by statute that an action may be maintained on a lost negotiable instrument. Under such statutes it is held that they may be maintained without showing the absolute destruction of the in.strument; Fairbanks v. Campbell, 53 111. App. 216; but Judgment cannot be recovered without Indemnity; Hendricks v. Whitecotton, GO Mo. App,. 671; Wledenfeld v. Gallagher (Tex.) 32 S. W. 248. Where the ren)edy at law is denied in the case of a lost negotiable instrument and there is no statute, relief must be sought by a bill in equity to compel payment after tender of indemnity; 7 B. & C. 90; Means v. Kendall, 35 Neb. 693, 53 N. W. 610. The loss of a bond is no objection to its payment by the company which issue<i it, upon indemnity; Miller v. R. Co., 40 Vt..399, 94 Am. Dec. 413. The title of the true owner of a lost certificate of stock may be asserted against a subsequent owner even though he be a bona fide purchaser; Knox v. Eden Mus6e Americain Co., 148 N. Y. 441, 42 N. B. 988, 31 L. R. A. 779, 51 Am. St Rep. 700. The contents of a lost deed, will, agreement, etc., may be proved by secondary evidence after proof of its existence; Gorgas v. Hertz, 150 Pa. 538, 24 Atl. 756; and that diligent search has been made and that it cannot be found; Tayl. Ev. 402; Laubach V. Meyers, 147 Pa. 447, 23 Atl. 765; the party’s own evidence Is sufficientfor this purpose; 1 Atk. 446; 1 Greenl. Ev. 8 349; or that of any one who knows the facts; Turner V. Cates, 90 Ga. 731, 16 S. E. 971. There must be conclusive evidence of its former existence, loss and contents; Smith v. Lurty, 108 Va. 799, 62 S. E. 789. See Specialty. Even a will proved to be lost may be admitted to probate upon secondary evidence; 1 Greenl. Ev. §§ 84, 509, 575; 1 P. & D. 154; 17 Eng. Rep. 45, note; but this case has been characterized as going to the “verge of the law”; 11 App. Cas. 474. The fact of the loss must be proved by the clearest evidence; (N. Y.) 173; 1 Hagg. Eccl. 115. Where It has been in the custody of the testator and is not found at his death, it is presumed to have been destroyed, animo revocandi; 17 Moak’s Engl. Rep. 511; Betts v. Jackson, 6 Wend. (N. Y.) 173; Southworth v. Adams, 11 Biss. 265, Fed. Cas. No. 13,194; 11 Biss. 265; especially where the testator knew of the loss while alive and did not produce it; Deaves’ Estate, 140 Pa. 242, 21 Atl. 395. Its absence is said to be prima facie evidence of cancellation; Legare v. Ashe, 1 Bay (S. C.) 464; but where no revocation is proved or presumed, declarations, written or oral, made by a testator, both before and after the execution of the will, are admissible as secondary evidence; id.; Steph. Ev. § 29; In re Lambie’s Estate, 97 Mich. 49, 56 N. W. 223: Schoul. Wills § 402. And see Dower v. Seeds, 28 W. Va. 113, 57 Am. Rep. 646, for an extended historical discussion of the subject. It is also said that chancery, on a bill.suitably filed, has exercised a similar jurisdiction; id. 'The “copy” of a lost Instrument intended by the act of congress of January 23, 1874 (for stamping unstamped instruments), is a substantial copy, or such a draft of the original instrument as will Identify the subject of the tax; Miller v. Wentworth, 82 Pa. 280. See Specialty.