
    Poor vers. Dougharty.
    1762.
    A Justice of the Peace cannot be admitted to testify to any Matter which came before him judicially, although he kept no Record of the Transaction.
    In an Action for false Imprisonment, the Justice’s Mittimus, on which the Plaintiff was committed. is not Evidence of the Fails therein recited.
    
      THE Defendant Dougharty lost some Goods, which he suspected Poor had stolen; upon which Complaint was made to a Justice of the Peace, who heard their several Stories, and ordered Poor to Goal for further Examination. Poor was again examined, but Dougharty not appearing, was discharged, and differed to go without Day. The Justice kept no Record of any Part of the Transaction. The present Action was commenced by Poor vs. Dougharty for false Imprisonment. The Justice was offered as a Witness to prove the Facts alledged, and objected to, for that whatever came before him was Matter of Record, for a Justice’s Court is a Court of Record, and that no Parol Evidence can be given of that which is Matter of Record. For this was cited 2 Lilly, 419; Wood’s Inst. Com. Law, 82.
    But it may go to the Jury as a Mittimus. Oliver & Cusbing, ff., diff.
    
    Whether a Paper shall go to the Jury or not when the Court is equally divided on that Question—quœre.
    
    
      Messrs. Otis & Thacher.
    
    It was said contrary, that though it be Matter of Record, yet, if it is not recorded, then the Justice may be called. The only Rule being that you shall produce the best Evidence you can. Now as Poor is unable to produce Record, not through any Default of his own, he may be allowed to produce Parol Evidence. That is a Record is burnt, they may swear Witnesses to prove the Fact which had been recorded, and this within the same Reason. Authorities cited: 1 Salk. 14 1 Strange, 691; Viner, Tit. Evid. 56; 7 Mod. 169 2 Show. 145.
    
      Mr. Gridley.
    
    It was said further, for the Defendant, what is in Court must be proved by Record, what is in Pais by Witnesses; Anything which passes before a Court is not Matter of Fact, but of Record.
   The Court

() upon this Point ruled unanimously, that the Justice should not be sworn to Anything that came before him judicially. ()

Then the Justice’s Mittimus was produced as Evidence. The Mittimus, as a Mittimus, was allowed by the Council for the Defendant. But the Recital of the Fact contained in it was excepted to, and the Exception was ruled by the Court to be good.

It was then debated whether the Mittimus was to be given to the Jury or not, as one Part of it was legal Evidence and the other not—on which 1 the Court was divided. ()

It was then debated whether it must go in, as the Court was divided upon it, or be taken out, upon which they were also divided, and the Cafe was adjourned for a full Court. () At February, A. D. 763, the Mittimus was admitted: Oliver & Cushing against; Ch. Just., Lynde, Russell for it. 
      
      (1) Under the Provincial Government, the Superior Court of Judicature consisted of five judges, and was held for all purposes by a full bench. All jury trials were conducted in the presence of the full Court, and not less than three judges were competent to preside. Anc. Chart. 330. 9 Pick. 569.
     
      
      (2) S. P. Sayles v. Briggs, 4 Met. 421. There the justice was offered to prove fails of which he should have made a record. Mr. Justice Hubbard says: “ 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 testimony which now exists. But it will be productive of 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. It has been argued that the record may be presumed to be lost. 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 were ever made.” See also Kendall v. Powers, 4 Met. 553; Wells v. Stevens, 2 Gray, 115 ; Tillotson v. Warner, 3 Gray, 574.
     
      
      (3) In Commonwealth v. Wingate, 6 Gray, 485, the Court allowed a complaint in evidence to go to the jury, although the record of the conviction of the defendant was upon the same paper—the jury being instructed that such conviction could not be considered as evidence.
     
      
      (4) The effect of a division is to incapacitate the Court from taking any action whatever on that point. 3 Chit. Prac. 10. 12 Co. 118. 11 Salk. 15. Goddard v. Coffin, Daveis, 381. And the burden being on the party offering the paper, it would seem that a divided court would have no power to admit it.
     