the bill is afterwards found pending the suit, it may be proved in the usual manner. 287 Preparatory to the admission of secondary evidence of its contents, it must be proved that this bill has been lost or destroyed,288 especially where the suit is on a certificate of deposit payable "on return of this certificate." 289 The question of evidence was once considered as determining that of jurisdiction. Thus, it was held at one time that on proof of the destruction of a bill, whether negotiable or not, its contents might be proved in a court of law by secondary evidence; but this has been overruled on the ground that a court of law cannot afford full relief or entertain jurisdiction in such case.290

Where the loss is denied by the plea, it must in all cases be proved by competent evidence.291 Such proof may be made by the plaintiff's attorney in whose hands the paper was placed for suit before it was lost,292 or by the holder of a lost note, although himself a party in interest, and as such not in general a competent witness.293

necessary, Bradley v. Long, 2 Strob. (S. C.) 160; or of the signature of a bank officer on the missing part of a bank note, Murdock v. Bank, 2 Rob. (La.) 112. But, if shown to be still in existence, no recovery can be had on it as a lost bill.

Stout v. Ashton, 5 T. B. Mon. (Ky.) 251.

287 Carlisle v. Davis, 7 Ala. 42; Drake v. Ramey, 3 Rich. Law (S. C.) 37; Jones v. Fales, 5 Mass. 101.

288 Aborn v. Bosworth, 1 R. I. 401; Vanauken v. Hornbeck, 14 N. J. Law, 178; Usher v. Gaither, 2 Har. & McH. (Md.) 457; Lewis v. Splane, 2 La. Ann. 754; Enston v. Friday, 2 Rich. Law (S. C.) 427; Bank of Louisville v. Summers, 14 B. Mon. (Ky.) 306. So, in West Virginia, if the loss is denied. Exchange Bank v. Morrall, 16 W. Va. 546. Proof of destruction is sufficient. Hagerstown Bank v. Adams Exp. Co., 45 Pa. St. 419. But the holder is not required to prove its absolute destruction. Swift v. Stevens, 8 Conn. 431.

289 Fells Point Sav. Inst. v. Weedon, 18 Md. 320; or where the action is upon a promise waiving laches in notice of dishonor of the bill, Powell v. Roach, 6 Esp. 76.

290 Byles, Bills, 281; Chit. Bills, 305; Woodford v. Whitely, Moody & M. 517; Pierson v. Hutchinson, 2 Camp. 211, 6 Esp. 126.

291 Exchange Bank v. Morrall, 16 W. Va. 546. This could not be formerly by the plaintiff or other interested witness, either at law, Cotton v. Beasley, 6 N. C. 259; Davis v. Benbow, 2 Bailey (S. C.) 427; or in equity, Wardlaw v. Gray, Dud. Eq. (S. C.) 85.

292 Glover v. Thompson, Ryan & M. 403. And the attorney's clerk, to whom it appears by other proof that the note was sent, is a necessary witness as to the loss and search made. Grover v. Clark, 5 U. C. Q. B. (O. S.) 208.

293 Chamberlain v. Gorham, 20 Johns. (N. Y.) 144.

Preliminary proof, at least, may be made by the affidavit of a party to the suit.294 So, in equity, by an affidavit of loss annexed to the bill of complaint, although this is not sufficient evidence, if the loss is denied.295 In Alabama it is provided by statute that the plaintiff's affidavit shall be presumptive evidence of the loss and of the contents of the paper, until denied by the defendant upon his affidavit.296 And suit will not lie on a lost bill indorsed in blank without such affidavit, although the bill is drawn in two parts, and only the protested part is lost.297 Where a copy is offered in evidence, diligent search must appear, and the affidavit must show the particulars.298 But it is not necessary that it should state that the bill was lost by accident.299

$ 1702.

Whether the evidence of the loss is legally sufficient to allow the plaintiff to prove the contents of the bill is a question for the court to determine.300 But the nonproduction of the original must be explained to the satisfaction of the jury.301 The evidence both as to the loss and the contents of the lost bill goes to the jury.302 And circumstantial evidence of the loss, which satisfies the jury of the fact, is sufficient.303 Thus, it has been held sufficient for a witness to show that the note must be among his papers, if it is

294 Donelson v. Taylor, 8 Pick. (Mass.) 389; 2 Daniel, Neg. Inst. 475; Cleveland v. Worrell, 13 Ind. 545; Wade v. Wade, 12 Ill. 89; Meeker v. Jackson, 3 Yeates (Pa.) 442. Even where his testimony is not admissible on trial of the action. Dormady v. Bank, 3 Ill. 236.

295 Fisher v. Carroll, 41 N. C. 485; Cockell v. Bridgeman, 4 Beav. 499. And it has been held sufficient both to give jurisdiction and let in secondary evidence, in Hill v. Lackey, 9 Dana (Ky.) 82. Although this latter purpose has been denied, as well as its sufficiency to prove that the note had not been negotiated. Grant v. Reid, 46 N. C. 512.

296 ALABAMA (Code, § 2597).

297 Posey v. Bank, 12 Ala. 802.

298 Palmer v. Logan, 4 Ill. 56.

299 Harryman v. Robertson, 3 Mo. 449.

300 Page v. Page, 15 Pick. (Mass.) 368; Donelson v. Taylor, 8 Pick. (Mass.) 390; Boyle v. Arledge, Hempst. 620, Fed. Cas. No. 1,758.

301 Bowman v. Smith, 1 Strob. (S. C.) 246.

302 Peabody v. Denton, 2 Gall. 351, Fed. Cas. No. 10,867.

303 Chit. Bills, 297; 2 Daniel, Neg. Inst. 474; Holiday v. Sigil, 2 Car. & P. 176; Nagel v. Mignot, 8 Mart. O. S. (La.) 488; without evidence of how he lost it, Down v. Halling, 4 Barn. & C. 330; or production of the published notice of loss, Miller v. Webb, 8 La. 516.

it;

not lost, and that he has made diligent and unsuccessful search for 304 or that the note was placed for collection in the hands of an attorney who has died, and that diligent search has been made for it in vain; 305 or to produce a duplicate letter, with a notarial copy of the bill, reciting that it was mailed with the bill by a certain. ship, together with proof that the ship's mail was thrown overboard on its being chased by a privateer.306 But it is not sufficient to prove that the note was mailed to a postmaster in another state, in order to procure evidence of its execution, and was never returned to the owner. 307 And it has even been held not to be sufficient for a recovery on half a bank note to prove that the other half had been mailed, and stolen from the mail.308

The production of a bill may be dispensed with by an admission on the defendant's part that a certain amount was due on it,3 309 or even, it has been held, by an acknowledgment that he drew the

304 Fremont v. U. S., 4 Ct. Cl. 252; or to prove the loss of the pocketbook containing the lost note, Higgins v. Watson, 1 Mich. 428. But an unsuccessful search "at home" is not of itself sufficient. Crowe v. Capwell, 47 Iowa, 426. 305 Patriotic Bank v. Little, 2 Cranch, C. C. 627, Fed. Cas. No. 10,809; especially where the attorney had been massacred and his papers destroyed, Vuyton v. Brenell, 1 Wash. C. C. 469, Fed. Cas. No. 17,026; or where the court files, in which the note should have been found, were abstracted, Herndon v. Givens, 16 Ala. 261. But it is not enough to show that it was left with a referee, and that subsequent inquiry was made of him unsuccessfully, without search in the court files which contained his report. Rogers v. Durant, 106 U. S. 644, 1 Sup. Ct. 623.

306 Anderson v. Robson, 2 Bay (S. C.) 495.

307 Depew v. Wheelan, 6 Blackf. (Ind.) 485.

308 Byles, Bills, 383; Mayor v. Johnson, 3 Camp. 324. But such half note comes within the provisions of the English Common Law Procedure act of 1854, as a lost note. Redmayne v. Burton, 9 Jur. (N. S.) 21; Smith v. Mundy, 6 Jur. (N. S.) 977.

309 Freyer v. Brown, Ryan & M. 145. So, his admissions as to its existence and amount, Latapie v. Gravier, 8 Mart. O. S. (La.) 316. So, an admission of the loss in an answer in chancery is sufficient, Charnley v. Grundy, 14 C. B. 608. But it is not enough that he had apologized for not paying it. Dangerfield v. Wilby, 4 Esp. 159. So, a mere list of bank notes in the handwriting of the alleged deceased owner, with unexplained marks opposite the numbers sued upon, but without evidence of their having been lost or having been in such owner's possession at his death, is insufficient. Glynn v. Bank, 2 Ves. Sr. 38.

RAND.C.P.-152

(2417)

bill.310 But it is not enough to show that the plaintiff had informed the deceased maker of the loss of the note, and had demanded another. 311

Evidence of Contents.

§ 1703. Upon proof of the destruction of a bill, its contents may be proved by parol evidence.312 So, where it is clearly shown to have been mislaid or lost without fraud on the holder's part.313 But, where a bill is lost after acceptance and protest, the proof of contents, in order to hold the drawer, must be sufficient to hold the acceptor also.314 Where a note is lost after the commencement of the suit, its contents may be proved, in like manner, by parol evidence,315 after proof, as in other cases, of loss and diligence.316 The plaintiff should not only prove the contents of a lost note, but his own title to it, by indorsement or other transfer.317 It will, however, be presumed that the lost instrument was duly stamped.318 And, in the absence of other evidence, it will be presumed that it was payable on demand.319 But there is no presumption that it was negotiable,320 especially if it is in the possession of the defendant,

310 Hart v. King, 12 Mod. 310.

311 White v. Brown, 19 Conn. 577.

312 Blackie v. Pidding, 6 C. B. 196. So, where it is torn and partly destroyed. Dean v. Speakman, 7 Blackf. (Ind.) 317.

313 Renner v. Bank, 9 Wheat. 581; Pintard v. Tackington, 10 Johns. (N. Y.) 104; Foster v. Mackay, 7 Metc. (Mass.) 531; Littler v. Franklin, 9 Ind. 216; Jernigan v. Carter, 60 Ga. 131. So, by statute, in MARYLAND (Pub. Gen. Laws, art. 13, § 11); MICHIGAN (How. Ann. St. § 7518); MINNESOTA (Gen. St. § 5736).

314 Bond v. Whitfield, 32 Ga. 215.

315 Weston v. Hight, 17 Me. 287; Abbott v. Striblen, 6 Iowa, 191. So. where an acceptance is lost after presentment to the committee of the bankrupt acceptor. Pooley v. Millard, 1 Cromp. & J. 411.

316 Viles V. Moulton, 11 Vt. 470.

317 Bean v. Keen, 7 Blackf. (Ind.) 152. So, to recover on a half bank note, proof of ownership is necessary. Farmers' Bank v. Reynolds, 4 Rand. (Va.) 186.

318 Byles, Bills, 385; Marine Inv. Co. v. Haviside, L. R. 5 H. L. 625.

319 Tucker V. Tucker, 119 Mass. 79.

320 Blade v. Noland, 12 Wend. (N. Y.) 173; McNair v. Gilbert, 3 Wend.

or has been destroyed by him.821 And, to bring a lost note or bill within a statute which applies only to negotiable paper, its negotiable character must be shown affirmatively.322

(N. Y.) 246; Yingling v. Kohlhass, 18 Md. 148; although indorsed in blank, Hough v. Barton, 20 Vt. 455.

321 Wright v. Wright, 54 N. Y. 437, affirming 59 Barb. 505.

8221 Edw. Bills & N. § 421.

(2419)