LOST INSTRUMENT. A document or pa per which has been so mislaid that it can not be found after diligent search.
Suits to recover upon lost instruments are within the jurisdiction of equity, but the proof as to the contents must be clear and satisfactory ; Fries v. Griffin, 35 Fla. 212, 17 South. 66 ; and such a suit will not be en tertained to establish the lost instrument merely as a piece of written evidence to sus tain an action of tort; Security Savings & Loan Ass'n v. Buchanan, 66 Fed. 799, 14 C. C. A. 97.
This equitable jurisdiction extends to or dering the issue of bonds to replace those lost, where the loss or destruction was with out fault of the party seeking relief ; and it can be done without derogating from posi tive agreement or violating equal or superior equities in other parties. Such relief was given in case of bonds stolen and hidden 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 Ga. 197, 23 S. E. 313 ; and wherever it is sought to establish title to real property under a lost unrecord ed deed, the rule as to the amount of evi dence required is very strict ; Day v. Phil brook, 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 mak ing profert ; 1 Ch. Cas. 77 ; but after profert Was dispensed with, the courts of law ac quired concurrent jurisdiction and the loss of a paper would not prevent recovery ; Ves. 341; 3 V. & B. 54. Nevertheless a court of equity still has jurisdiction to es tablish 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 pay able upon "presentation and delivery of the coupon" will not prevent recovery on a lost coupon ; Rolston v. R. Co., 21 Misc. 439, 47 N. Y. Supp. 650. Where a note is lost pend ing an action while in the hands of the jus tice, indemnity is not required ; Winship v. May, 7 Colo. App. 355, 43 Pac. 904 ; and an allegation of loss after maturity of a note sued on, dispenses with the necessity of ten der 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, 57 Ill. 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 lie upon a lost negotiable instrument; 10 Ad. & E. 616 ; Whitesides v. Wallace, 2 Speers, L. (S. C.) 193. The weight of authority seems to be that an action would not lie on a lost nego tiable note ; 1 Exch. 167 ; 9 id. 604 ; Moses
v. Trice, 21 Gratt. (Va.) 556, 8 Am. Rep. 609; Chancy v. Baldwin, 46 N. C. 78 ; Willis v. Cresey, 17 Me. 9 ; Butler v. Joyce, 20 Dist. Col. 191 (distinguishing Boteler v. Dexter, 20 D. C. 26, where the action was maintained on a note accidentally lost after being in evi dence in that court); contra, Anderson v. Robson, 2 Bay (S. C.) 495 ; Robinson v. Bank, 18 Ga. 65 ; Aborn v. Bosworth, 1 R. I. 401; Meeker v. Jackson, 3 Yeates (Pa.) 442 ; but see comments on these cases, 16 L. R. A. 305, note. In some courts the suit has been per mitted upon giving indemnity ; Bridgeford v. Mfg. Co., 34 Conn. 546, 91 Am. Dec. 744 ; Lewis v. Petayvin, 4 Mart. N. S. (La.) 4 ; Fales v. Russell, 16 Pick. (Mass.) 315. It will not lie if the owner has destroyed it; Booth v. Smith, Fed. Cas. No. 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 destroyed. The case of a bond did not depend on the difference be tween loss and destruction, but on the neces sity 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 exer cise of this equitable jurisdiction is still con tinued, although the common law courts al low loss or destruction to nbe pleaded as an available excuse for the want of profert. But in the case of a note, bill, check, or other simple contract security, over cannot be de manded, and you may therefore recover by proving the contents. With respect to a ne gotiable security paper which passes by mere delivery and which is not destroyed but lost, the remedy is always in chancery, on terms of giving security. By the express term of the ticket (a lottery ticket), whatever prize should be drawn opposite to its number, was to be payable only to 'the bearer ; which, by necessary implication, would require the 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 suffi ciency of the security being a matter to be judged of at the trial. Equity may dispense with tender before bill filed, because com plete 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 pre sents the ordinary case of a suit brought be fore the cause of action is complete." Per Gibson, J., in Snyder v. Wolfley, 8 S. & R. (Pa.) 331.