The Indianapolis and Cincinnati Railroad Co. v. Jewett

• Decision Date: 05 June 1861
• Citation: 16 Ind. 273
• Parties: The Indianapolis and Cincinnati Railroad Company v. Jewett
• Court: Indiana Supreme Court

16 Ind. 273

The Indianapolis and Cincinnati Railroad Company v. Jewett

Supreme Court of Indiana

June 5, 1861

APPEAL from the Decatur Circuit Court.

The judgment is affirmed, with 3 per cent. damages and costs.

James Gavin and Oscar B. Hord, for the appellant.

Jno S Scobey, for the appellee.

OPINION

Hanna J.

This case was here once before. 10 Ind. 539. The pleadings were not changed after the return of the case to the Court below where it was again tried, and judgment given for the appellee for $ 2,791 66/100. Questions arising upon the second trial are now presented.

Secondary evidence was received of the writing called a subscription signed by the appellee. It is objected that the foundation was not laid for the admission of such evidence. 1. It was proved that a notice had been served upon the appellant to produce the original, or a copy, it having been proved that it passed into the possession of appellant. 2. The Court made an order, of record, directing such production. 3. A demand of the original, or a certified copy, was proved to have been made of the secretary of the company, at its office; to which the answer was given by him that it was lost. It is insisted that the loss could not be thus proven; that the secretary should have been produced as a witness to that point.

Without inquiring as to the propriety of the steps taken to procure the evidence, we are of opinion that the statement that it was lost was, prima facie, sufficient to permit oral proof of its contents. It is to be presumed from the character and ordinary duties of the officer who made the admission of its loss, that he was the custodian of such writings; therefore, his admission was competent as against his employer, especially in this instance, as his predecessor was shown to have at one time furnished a list of the names, &c., attached to the paper. 1 Gr. Ev., §§ 113, 114, 191; Ang. & Am. on Cor., §§ 309, 659.

Evidence was also given that the same steps were taken to procure the original order of the board, or a copy thereof, as to the settlement with the original conditional subscribers, and the appointment of Foley and others to make such settlement. The order was not forthcoming in any form, and it was in evidence that it was in possession of the secretary, who read it to the witness the day before the trial, when the demand was made.

The statute points out a mode of proving the acts of a corporation. 2 R. S., § 284,...