Poor v. Dougharty

The Court

(¹) upon this Point ruled unanimously, that the Justice should not be sworn to Anything that came before him judicially. (²)

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. (³)

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. (⁴) At February, A. D. 763, the Mittimus was admitted: Oliver & Cushing against; Ch. Just., Lynde, Russell for it.

1 (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 (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 (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 (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.