In some states and in England it is pro vided by statute that an action may be main tained on a lost negotiable instrument. Un der such statutes it is held that they may be maintained without showing the absolute de struction of the instrument ; Fairbanks v. Campbell, 53 Ill. App. 216 ; but judgment cannot be ' recovered without indemnity ; Hendricks v. Whitecotton, 60 Mo. App. 671; Wiedenfeld v. Gallagher (Tex.) 32 S. W. 248.
Where the remedy 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 ten der 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 issued it, upon indem nity ; Miller v. R. Co., 40 Vt. 399, 94 Am. Dec. 413. The title of the true owner of a lost certificate of stock may he asserted against a subsequent owner even though he be a bona fide purchaser ; Knox v. Eden Muse 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, agree ment, etc., may he proved by secondary evi dence after proof of its existence; Gorgas v. Hertz, 150 Pa. 538, 24 Atl. 756 ; and that diligknt search has been made and that it cannot be found ; Tayl. Ev. 402; Lauhach v. Meyers, 147 Pa. 447, 23 Atl. 765 ; the par ty's own evidence is sufficient for this pur pose ; 1 Atk. 446 ; 1 Greenl. Ev. § 349 ; or that of any one who knows the facts ; Turner v. Cates, 90 Ga. 731, 16 S. E. 971. There mu'kt be' conclusive evidence of its former ex istence, loss and contents ; Smith v. Lurty, 108 Va. 799, 62 S. E. 789. See SPECIALTY.
Even a will proved to be lost may be ad mitted 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 ; Davis v. Sigourney, 8 Metc. (Mass.) 487 ; 2 Add. Eccl. 223 ; Betts v. Jackson, 6 Wend.
(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 revocandii; 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 cancel lation; Legare v. Ashe, 1 Bay (S. C.) 464; but where no revocation is proved or pre sumed, declarations, written or oral, made by a testator, both before and after the exe cution of the will, are admissible as secon dary evidence; id.; Steiih. 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 ex tended historical discussion of the subject. It is also said that chancery, on a bill suit ably filed, has exercised a similar jurisdic tion; 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 orig inal instrument as will identify the subject of the tax ; Miller v. Wentworth, 82 Pa. 280. See SPECIALTY.