Isley v. Boon

MerriMON, C. J.

after stating the case, proceeded: The evidence proposed and rejected on the trial must be accepted for the present purpose as true, because it was material, and if it had been submitted to the jury they might have believed and so treated it.

The facts showed that material parts of the record of the special proceeding referred to had been lost or destroyed. The Clerk of the Court, the proper custodian of the record, made diligent search in his office for such parts of it as were alleged to have been lost, and he was unable to find them. It must be taken that he made such search where, regularly, they ought to be, and generally through his office, where he might hope to find them. McKesson v. Smart, 108 N. C., 17. He failed to find them, if they ever existed. They' were lost or destroyed. It is not suggested that they were not, nor did the Court found its opinion upon such supposition.

Then, if the parts of the record specified were lost or destroyed, it was clearly competent to prove on the trial by secondary evidence such loss or destruction, and also what the nature, meaning and purport of such lost parts were. It has been.so expressly decided. In Mobley v. Watts, 98 N. C., 284, Justice Davis said: “If the record is lost and is ancient ; ^ J its existence and contents may sometimes be presumed, but whether it be ancient or recent, after proof of the loss, its contents may be proved like any other document, by secondary evidence,- where the case does not from its nature disclose the existence of other and better evidence.” This case, it seems to us, plainly comes within what is said and decided in the case just cited. Indeed, it is well settled that where the record is lost, and it appears that it existed and its purpose and contents appear, it may be proven on the trial of any action where it becomes material by secondary evidence. The loss or destruction of the record should, however, be made to appear clearly before receiving such secondary evidence. Stanly v. Massingill, 63 N. C., 558; Yount v. Miller, 91 N. C., 331; Rare v. Holloman, 94 N. C., 14.

There is error. The judgment of nonsuit must be set aside, and the case, disposed of according to law.

Error.