Hendon v. North Carolina R. R.

Clark, J. Tlris was an action alleging loss of a certificate for 2 shares of stock in the defendant company, and asking for reissue of tlie certificate for the same. The allegation of loss was the basis of the plaintiff’s action, and being denied in the answer, the issue of fact thus raised should have been submitted to the jury. In the course of a trial when evidence to prove an alleged fact is primarily in writing, and secondary evidence is offered upon the ground that such writing has been lost or destroyed, it is for the Court to find the question of fact, whether the loss or destruction of the writing has been sufficiently proven to admit oral evidencé of the contents. Gillis v. Railroad Co., 108 N. C., 441; Bonds v. Smith, 106 N. C., 564; 1 Greenleaf Ev., 558. But in those cases, unlike the present, the loss of the paper was not allegedln the complaint as a ground for its re-execution and denied in the answer. In Ellison v. Rix, 85 N. C., 77, the loss of the note was averred in the complaint and denied in the answer, but the action being only for recovery of the debt evidenced by it, and not for the re-execution of the note, it was held that such averment and denial raised only a preliminary question of fact for the Court, and not an issuable fact for the jury. In the present case the re-execution of the certificate being the relief sought, the averment and denial of its loss raised an issue for the jury. Upon the trial, however, upon evidence being offered as to the contents of the lost paper, the Court will have to pass upon the preliminary question whether there is a sufficient prima facie case of loss to let in proof of contents, leaving still to the jury the decision of *128 the- fact whether there was a loss of the. paper, and its contents; otherwise, two trials would be necessary, one to find whether tire paper has been lost, and afterwards (if found to be lost), a trial to find its contents. An analagous case is where the declarations or acts of an agent are offered in evidence; there the Court must find whether there is a prima facie case of agency established, leaving it still to the jury to find whether in fact there was an agency, and if so, the purport of the acts and declarations of the agent. Johnson v. Prarie, 91 N. C., 164, and cases there cited. The judgment is in accordance with the provisions of chap. 265, Laws 1885. That act is in no wise an amendment to the charter of the defendant company, but a general provision applicable to all corporations, regulating the manner of issuing certificates where certificates of stock have been lost, and requiring indemnity bonds from the plaintiff, and permitting a retention of the reissued certificates by the company’s treasurer for 5 years as further safeguard. Such act is in the nature of the general regulations prescribed by The Code, Vol I, chap. 49, and the act creating the Railroad Commission, which have been repeatedly held valid. Railroad Co., v. Railroad Co., 104 N. C., 658; Ex. Co. v. R. Co., 111 N. C., 463; Mayo v. Tel. Co., 112 N. C., 343; Commissioners v. Tel. Co., 113 N. C., 213; Caldwell v. Wilson, 121 N. C., 425. Error.