#### Alexander As Ad. vs. Foreman. *

Trover: plea of pendency of former suit in same court: replication, nul iiel record, and issue — Held that parol evidence ot the pendency of the former suit could not be introduced, but defendant should have produced the record itself or established its loss by competent evidence, and then he might have introduced a regularly authenticated or sworn copy — as held in Smith vs. Dudley, 2 JLrk. B. 62.

Appeal from the Circuit Court of Benton County.

Trover, by Alexander as administrator of Payne, against Foreman determined in the Benton circuit court at the Nov. term 1845, before Sneed, judge. The defendant pleaded former action pend*253ing at the commencement of the suit, plaintiff replied nul tiel record, to which defendant joined issue. The cause was submitted to the court, and the court found for defendant, and rendered judgment that the suit abate.

From a bill of exceptions taken by the plaintiff it appears that the court permitted the defendant to prove by the clerk of the court, and another witness, the pendency of a former action in the same court about the same subject matter, &c. at the time this suit was instituted — to which plaintiff excepted, and appealed.

D. Walkeh, for appellant.

*

Note — *This case was decided at the July term, 1846.

Oldham, J.

The plea and replication put in issue the existence of a record of the court in which this cause was tried. The records of the court are placed in the custody and safe keeping of the clerk, and it is always presumed that he faithfully performs that duty, and safely preserves the records of his office until the contrary is made to appear. If such a record as averred by the plea had existed, there was higher and better evidence of the fact than the parol evidence introduced by the defendant. He should have produced the record itself, or should have first established the loss by competent evidence, when he would have been permitted to introduce a regularly authenticated or sworn copy. The case of Smith vs. Dudley, 2 Ark. R. 62, fully determines the question here presented. Let the judgment of the circuit court be reversed and the cause remanded.