It is different as to negotiable instruments, for, as is said in Fisher v. Carroll, 41 N.C. 488, "The loss of a deed, even in a court of law, may be shown by the oath of a party, so as to let in secondary evidence; and the only reason why the same practice is not followed in these courts, in reference to the loss of bonds and notes, is the want of power to require an indemnity as a condition to the judgment." The same distinction in regard to negotiable instruments is taken (Cotton v. Beasley, 6 N.C. 259) where it is held that in a court of law the loss of a bond cannot be proven by the party, because it is negotiable. In Hansard v. Robeson, 14 E.L.C., 20, this further reason is given when the action is against an endorse: The holder has no legal right to require payment unless he delivers up the note, so as to give the defendant his remedy over.
New trial. NOTE. — As to the proof of lost papers other than deeds, see Garland v. Goodloe, 3 N.C. 351; Cotten v. Beasley, 6 N.C. 259; Governor v. Barkley, 11 N.C. 20; Dumas v. Powell, 14 N.C. 103. As to the lost deeds, see Blanton v. Miller, 2 N.C. 4; Wright v. Boyan, ibid., 178; Park v. Cochran, ibid., 410; Nicholson v. Hilliard, 6 N.C. 270; Smith v. Wilson, 18 N.C. 40.
COTTON v. BEASLEY. — 1 L. R., 239. See S. c., 6 N.C. 259. MANN v. PARKER. — 1 L. R., 242.
NOTE. — Upon the first point, see Murray v. Marsh, post, 290; Ingram v. Watkins, 1 N.C. Upon the last two points, see Cotton v. Beasley, 6 N.C. 259; S. c., 4 N.C. 19; McFarland v. Patterson, 4 N.C. 421; Blanton v. Miller, 2 N.C. 4; Baker v. Webb, ibid., 43; Garland v. Goodloe, post, 351; Bryan v. Parsons, 5 N.C. 152; Carlton v. Bloodworth, ibid, 424; Nicholson v. Hilliard, 6 N.C. 270; S. c., 4 N.C. 24; Governor v. Barkley, 11 N.C. 20; S. v. Kimbrough, 3 N.C. 431; Dumas v. Powell, 14 N.C. 103; Smith v. Wilson, 18 N.C. 40; Kello v. Maget, ibid., 414; Murphy v. McNeil, 19 N.C. 244.