Section 6-5-284

Instrument lost or destroyed by theft, etc.; evidence of loss, destruction and contents; execution bond.

(a) In an action commenced on a bond, note, bill of exchange, or other instrument which has been lost or destroyed by theft or otherwise, if affidavit is made by the plaintiff of such loss or destruction and the contents thereof and that the same has not been paid or otherwise discharged and accompanies the complaint, it must be received as presumptive evidence both of the contents and loss or destruction of such instrument, unless the defendant by answer, verified by affidavit, denies the execution of such bond, note, or bill or the endorsement, acceptance, or the contents thereof, in which case proof of such execution, endorsement, acceptance, or contents must be made by the plaintiff; provided, that this section must not be so construed as to authorize an action for the recovery of bank notes or bills issued to circulate as money and alleged to be lost or destroyed. When the action is against an executor or administrator, he may controvert the oath of the plaintiff of the loss, destruction, or contents of the instrument sued on by swearing to the best of his knowledge and belief.

(b) No execution may issue on a judgment in an action on a lost or destroyed instrument until the plaintiff shall furnish such security as the court may require to indemnify the defendant against loss by reason of further claims on the instrument.

(Code 1852, §§2151, 2152; Code 1867, §§2549, 2550; Code 1876, §§2915, 2916; Code 1886, §§2597, 2598; Code 1896, §§31, 32; Code 1907, §§2491, 2492; Code 1923, §§5702, 5704; Code 1940, T. 7, §§129, 131.)