LOST PAPERS. Papers which have been so mislaid that they cannot be found after diligent search.
2. When deeds, wills, agreements, and the like, have been lost, and it is desired to prove their contents, the party must prove that he has made diligent search, and in good faith exhausted all sources of information accessi ble to him. For this purpose his own affi davit is sufficient. 1 Atk. Ch. 446; 1 Green leaf, Ev. 349. On being satisfied of this, the court will allow secondary evidence to be given of its contents. See EVIDENCE.
3. Even a will proved to be lost may be admitted to probate upon secondary evidence. 1 Greenleaf, Ev. 2d ea. 84, 609, 575 ; 2 id.
668 a. But the fact of the loss must be proved by the clearest evidence; because it may have been destroyed by the testator animo revocandi. 8 Mete. Mass. 487 ; 2 Add. Eccl. 223 ; 6 Wend. N. Y. 173 ; 1 Hagg. Eccl. 115 ; 3 Pick. Mass. 67 ; 5 B. Monr. Ky. 58; 2 Curt. Eccl. 913.
4. When a bond or other deed was lost, formerly the obligee or plaintiff was com pelled to go into equity to seek relief, because there was no remedy at law, the plaintiff being required to make profert in his declara tion. 1 Chaim Cas. 77. But in process of
time courts of law dispensed with profert in such cases, and thereby obtained concurrent jurisdiction with the courts of chancery : so that now the loss of any paper, other than a negotiable note, will not prevent the plaintiff from recovering at law, as well as in equity.
3 Atk. 214; 1 Ves. Ch. 341 ; **5 id. 235; 6 id. 812; 7 id. 19; 3 Ves. & B. Ch. Ir. 54.
5. When a negotiable note has been lost, equity alone will, in the absence of statutory provisions, grant relief. In such case the claimant must tender an indemnity to the debtor, and tile a bill in ohancery to compel payment. 7 Barnew. & C. 90; Ry. & M. 90; 4 Taunt. 602 ; 2 Ves. Sen. Ch. 317 ; 16 Ves. Ch. 430.