832. Sir F. POLLOCK and Professor F. W. MAITLAND. History of the English Law. (1895. II, 666.) The distinction that we still draw between "courts of record" and courts that are "not of record” takes us back to very early times when the King asserts that his own word as to all that has taken place in his presence is incontestible. This privilege he communicates to his own special court; its testimony as to all that is done before it is conclusive. If any question arises as to what happened on a previous occasion the justices decide this by recording or bearing record (“recordantur," "portant recordum"). Other courts, as we have lately seen, may and, upon occasion, must bear record; but their records are not irrefragable; the assertions made by the representative doomsmen of the shire-moot may be contested by a witness who is ready to fight. We easily slip into saying that a court whose record is incontrovertible is a court which has record (“habet recordum”) or is a court of record, while a court whose record may be disputed has no record (“non habet recordum") and is no court of record. In England only the King's court-in course of time it becomes several courts is a court of record for all purposes, though some of the lower courts "have record" of some particulars, and sheriffs and coroners "have record" of certain transactions, such as confessions of felony. In the old days, when as yet there were no plea rolls, the justices when they bore record relied upon their memories.1 From Normandy we obtain some elaborate rules as to the manner in which record is to be borne or made; for example, a record of the Exchequer is made by seven men, and, if six of them agree, the voice of the seventh may be neglected. In England at a yet early time the proceedings of the royal court were committed to writing. Thenceforward the appeal to its record tended to become a reference to a roll, but it was long before the theory was forgotten that the rolls of the court were mere aids for the memories of the justices; and as duplicate and triplicate rolls were kept there was always a chance of disagreement among them. A line is drawn between "matter of record" and "matter in pays" or matter which lies in the cognizance of the country and can therefore be established by a verdict of jurors. 833. Sir EDWARD COKE. Commentaries upon Littleton. (1628 p. 260.) "Recordum" is a memorial or remembrance in rolles of parchment of the proceedings and acts of a court of justice. . . . And the rolles, being the records or memorialls of the judges of courts of record, import in them such incontrollable credit and veritie as they admit no averment, plea, or proofs to the contrarie; . . . and the reason hereof is apparent, for otherwise (as our old authors say, and that truly) there should never be any end of controversies; which should be inconvenient. 834. SAYLES v. BRIGGS SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1842 4 Metc. 421 TRESPASS upon the case for malicious prosecution. The declaration contained three counts, charging three distinct prosecutions of the plaintiff by the defendant. To support the third count, the plaintiff gave in evidence a complaint to a magistrate, signed and sworn to by the defendant, charging the plaintiff with forging a record of a magistrate; but he did not give in evidence any warrant issued on said complaint, nor prove that he was arrested and held to answer to the complaint, except by parol testimony. The plaintiff was arraigned before a justice of the peace, who made the following record, and no other, of the proceedings before him: "Berkshire SS. At a justice's court holden before me, at house of Franklin Bartlett, in Adams, on Wednesday, 13th day of February 1839, at one of the clock in the afternoon, Commonwealth vs. Franklin O. Sayles, on the complaint of Peter Briggs, Esq., for forgery. After full hearing in the case, the complainant withdrew his prosecution, and it was thereupon ordered by me the said justice, that the said Franklin O. be discharged." The plaintiff offered parol testimony of the said justice and others, that he was arraigned on all the aforesaid complaints, and pleaded to the same, and that a hearing thereon was had before said justice, who discharged the plaintiff. The defendant objected to the admission of this testimony. But, as it appeared that no record had been made, by said justice, of the proceedings had before him, except that above set forth; and as it further appeared that said justice was no longer a justice of the peace under the commission held by him at the time of the trial and hearing of said cases before him, and that he had declined to qualify himself as a justice under a new commission which he had since received, and had also declined to make any further record in relation to said proceedings; the judge, before whom the trial was had, ruled that it was competent for the plaintiff to introduce parol evidence, if not contradictory to said record, to prove the issuing of the warrant on the third complaint, and also that the plaintiff was arraigned on all said complaints, and pleaded to the same, and that, upon a hearing before said justice, he was, by said justice, discharged therefrom. The proposed evidence was thereupon admitted, and a general verdict was returned for the plaintiff, which is to be set aside, and a new trial granted, if said ruling was erroneous. Porter & Rockwell, for the defendant. Bishop & Byington, for the plaintiff. HUBBARD, J.-To sustain an action for malicious prosecution, it is necessary for the plaintiff to give evidence, by the production of the record, or a true copy of it, of the proceedings and an acquittal of the charge, with the further proof that the accusation was malicious and without probable cause. Bul. N. P. 13-15. Stone v. Crocker, 24 Pick. 87. In the present case, the parol evidence, which was admitted to prove the issuing of the third warrant, the arraignment on all the complaints, and the discharge therefrom, was objected to by the defendant, and the question for consideration is, whether it was properly admitted. The ground of the admission was, that it was not contradictory to the record. A record is a memorial or history of the judicial proceedings in a case, commencing with the writ or complaint, and terminating with the judgment, and the design is, not merely to settle the particular question in difference between the parties, or the government and the subject, but to furnish fixed and determinate rules and precedents for all future like cases. A record, therefore, must be precise and clear, containing proof within itself of every important fact on which the judgment rests; and it cannot exist partly in writing and partly in parol. Its allegations and facts are not the subject of contradiction. They are received as the truth itself, and no averment can be made against them nor can they be varied by parol. But records, like other documents, are exposed to casualties, and, like them, may also be misplaced or lost; or owing to the accidents which continually occur, the record may not, in a given instance, have been extended from the minutes of the proceedings. And the cases are abundant to show that a lost record, like a lost deed, may be proved by parol; and that the minutes may be introduced, where the record has not been drawn out "in extenso," as containing the elements of the record, and, in truth, for the time being, the record itself. . . . But in the present case, no facts or circumstances were introduced tending to prove either the loss of records, or the existence of any other record than the one produced; nor any minutes, from which another record might be completed. On the other hand, it appears that no record, other than the one in evidence, was ever made, and that no minutes were taken, at the time of the alleged trial, from which such further record could be made. It is impracticable, therefore, to support the introduction of this testimony on the ground that the record or a part of it was lost. Again, it is argued that this testimony should be received from necessity, as there is no way by which the plaintiff can obtain redress, and that this is the best evidence which now exists. But in my judgment it will be productive of far less mischief for an individual to suffer from the neglect or misfortune of an officer in not making a judicial record than to establish a precedent that the record itself or a part of it may be proved by parol, that it may speak one language today and another tomorrow, depending on the different witnesses who are called or on their changing recollections. And without prescribing a rule for a case where a magistrate might by the act of God be deprived of the opportunity of making even any minutes of proceedings before him from which a record could be made (if such a case should ever occur), we are of opinion that the want of a judicial record cannot be supplied by parol evidence; and that the rules which apply to the admission of testimony to prove the contents of a lost record, or to the introduction of minutes by which the record may be extended, have no real bearing on a case like the present, where no such loss ever took place and no such minutes ever were made. A party who is to be affected by the record will in the exercise of ordinary care see that it is correctly made up; and if the officer should neglect or refuse to perform his duty, he can be compelled by mandamus to make a true record. There is, then, no record of an acquittal on the charge contained in the second count, nor of the issuing of a warrant, or of an acquittal, on the third count; and, for the reasons given, the want of such a record cannot be supplied by parol proof. As the parol testimony ought not to have been admitted, the verdict must be set aside, and a new trial granted. 835. HUGHES v. PRITCHARD SUPREME COURT OF NORTH CAROLINA. 1910 153 N. C. 23; 68 S. E. 906 APPEAL from Superior Court, Camden County; FERGUSON, Judge. Proceedings by M. E. Hughes, Sr., against D. T. Pritchard to establish a division line. From a judgment for plaintiff, defendant appeals. Affirmed. This is a proceeding which was instituted for the purpose of establishing the dividing line between a tract of land alleged by the plaintiff to be the homestead of the defendant, and an adjoining tract, which was purchased by the plaintiff at a sale under an execution issued against the defendant. In his deed the sheriff conveyed to the plaintiff the tract of land upon which he had levied under the execution, but excepted therefrom the homestead of the defendant. It appeared that the report of the appraisers, who set apart the homestead to the defendant, could not after diligent search be found in the clerk's office. There was evidence tending to show that an allotment of the homestead had been made by three appraisers, at the request of the sheriff, and that their report was prepared and signed by them. This report was seen in the clerk's office among the papers in the judgment roll of the case in which the execution had been issued. A copy of the report was made, and, after proving the loss of the original report, the plaintiff proposed to prove, by oral evidence and by the copy, the contents of the original report, for the purpose of showing the boundaries of the homestead and the proper location of the disputed line. This testimony was objected to by the defendant, but admitted by the Court. W. A. Worth and H. S. Ward, for appellant. E. F. Aydlett, J. C. B. Ehringhaus, and Pruden & Pruden, for appellee. WALKER, J. (after stating the case as above). The testimony was clearly competent. The defendant's objection was based upon the ground that oral evidence cannot be received to prove the contents of a judicial record, unless in a proceeding brought to establish the lost or destroyed record, under chapter II of the Revisal, and that the record thus restored by proof and the judgment of the Court is the only evidence admissible to show the contents of the lost record. This is a misapprehension of the meaning and scope of that enactment. It is an enabling act, and it was not intended to exclude oral evidence, which was admissible at common law to prove the contents of a lost instrument, whether a deed or the record of a Court. This has been well settled by the decisions of this Court. Mobley v. Watts, 98 N. C. 284; and cases cited in the annotated edition; Cox v. Lumber Co., 124 N. C. 80; Aiken v. Lyon, 127 N. C. 175; Jones v. Ballou, 139 N. C. 526; Wells v. Harrell, 152 N. C. 218. In this case the plaintiff did not depend altogether upon the memory of a witness as to the contents of the report, but introduced an examined copy, or one which had been compared with the original and found to be correct. This is the principal exception of the defendant, and in passing upon it we must sustain the ruling of the Court below. . . No error. ... 836. COTE v. NEW ENGLAND NAVIGATION CO. 213 Mass. 177; 99 N. E. 972 1912 EXCEPTIONS from Superior Court, Bristol County; JABEZ Fox, Judge. Action by Edmond Cote against the New England Navigation Company. There was a verdict for plaintiff, and defendant brings exceptions. Overruled. Arthur S. Phillips, of Fall River, for plaintiff.. Arthur W. Blackman, of Boston, for defendant. RUGG, C. J.-This is an action of contract. The declaration alleges that the defendant as common carrier received a log of veneer of the value of $62 shipped to the plaintiff, which it failed to deliver. The only defence now material is that the plaintiff has sued the New York, New Haven & Hartford Railroad Company for the same cause of action, wherein the plaintiff recovered judgment which had been satisfied. The defendant admitted that it transported the veneer. It was undisputed that prior to the present action the plaintiff had brought action |