Gore v. Elwell , 22 Me. 442 ( 1843 )

The opinion of the Court was drawn up by

Whitman C. J.

— The authorities cited by the counsel for the defendant are clearly in point to show, that, if a record be destroyed or irrecoverably lost, parol evidence is admissible to show, that it once existed, and the purport of it. The writ, with the officer’s return of his doings in virtue of it, is to be regarded as appurtenent to and indeed a part of the record. That it has, in this instance been casually lost is not controverted; and the rights of the defendant cannot be allowed to be affected by the loss. 'Writs and the returns of officers thereof, are never entered verbatim and at length on the records of the doings of the Court, consequent upon their being returned into Court. They remain on the files of the Court. They are, therefore, liable to be casually lost and destoyed; more so than the volumes of records of judgments. Deplorable indeed might be the condition of many of the titles, under levies on real estate, if parol evidence were inadmissible to show the existence of an original writ, and the return of the service thereon, in case of its loss. We think the plaintiff should become nonsuit.