Pruden v. Alden, 40 Mass. 184

Pruden v. Alden

40 Mass. 184 | Mass. | 1839

Shaw C. J.

afterward drew up the opinion of the Court It being very clear, that the administratrix could make no valid *187sala, without a license, the title of the tenant depends upon proof of such license. It is contended on the part of the demandants, that there is no legal proof of such a license having been granted. We think it may be admitted, as contended for by the demandants, that a license by the Court of Common Pleas must be proved by its records. But the Court are to take notice how the records of their own and of other courts are in fact made and kept. The clerk intrusted with the duty of keeping records, must of necessity take down the doings of the court, in short and brief notes , this he usually does in a minute book called the docket, from which a full, extended and intelligible record is afterwards to be made up. But until they can be made up, these short notes must stand as the record ; and if, in the mean time, through the death or sickness of the clerk, or other casualty, they are lost, it must be deemed a loss of the records, and secondary proof may be offered of their contents. Evans v. Thomas, 2 Strange, 833 ; Dayrell v. Bridge, 2 Strange, 1264. If a record be lost or consumed by fire, it may be proved by collateral evidence. Com. Dig. Evidence, A 3; Thurston v. Slatford, 1 Salk. 284.

In the present case, the license relied upon is supposed to have been granted at the August term, 1807, and is so recited in the deed to the tenant; and it is proved, that the docket of that term is missing. The recital in the deed, corroborated by many other circumstances, together with more than thirty years’ undisturbed possession by the tenant under a deed which could only be good by force of such license, appears to the Court to be sufficient proof of the existence and loss of the record, to let in secondary evidence.

And from the evidence thus offered, the Court are satisfied, that such license was in fact granted, and some minute of it entered by the clerk, which would have been sufficient to warrant him in making up an extended record, according to the usual course of business in his office.

Under the agreement of the parties, the Court are of opinion, that the jury would have been authorized to find that there was a legal license to the administratrix to sell the estate, and that the tenant took a good title under it. [See Whitney v. Sprague, post, 198.]

Demandants nonsuit