Scott

Mr. Justice Terry concurred.

Upon the first assignment of error, the judgment must be reversed.

The rule laid down in Greenleaf on Evidence as to the predicate for the admission of secondary evidence of a lost paper, requires “ that a Iona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found;” and further, “ the party is expected to show that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.

It appears from the evidence in the record that the deed, whose loss *462 was supplied, by secondary evidence, was most likely to have been either among the papers of Folsom in the hands of his executors, or among those of his attorneys to whose custody it appears by an affidavit made by him in his lifetime, he consigned it.

Van Winkle, one of the executors of Folsom, testifies that he searched among Folsom's papers for it, and did not find it. This was insufficient. He should have sworn to a bona fide and diligent search. He may have made a careless and indifferent one, and yet his…