1. The evidence of the magistrate proved that there was an original complaint and warrant which had been *577lost, and that minutes of the proceedings thereon against the plaintiff were made by him on the back of the papers, in conformity with his usual practice. This was satisfactory proof that a record had once existed, and it being shown to have been lost, by testimony which seems to us amply sufficient, secondary evidence of its contents was clearly admissible. It was not necessary that the minutes should have been extended, so as to form a full and complete record. Davidson v. Slocomb, 11 Pick. 464. Pruden v. Allen, 23 Pick. 184. Sayles v. Briggs, 4 Met. 421, Read v. Button, 2 Cush. 115. It does not appear by the exceptions that any evidence was offered of proceedings before the magistrate which were not substantially stated in the minutes. The testimony of the magistrate seems to have been confined strictly to proof of the contents of the lost record.
The subsequent admission of a certified copy of the record was according to the established rule of evidence in such cases. 1 Greenl. Ev. § 501. If it had been introduced, or shown to be in existence, at an earlier stage of the trial, it might have rendered the paroi evidence inadmissible. But a court is bound to decide as to the competency of proof, upon the state of facts which has been made to appear, when the evidence is offered. Its rulings cannot be set aside because, at a subsequent stage of a trial, facts are brought to light, which, if known, might have led to a different decision. Besides ; in the present case, on the production of the duly certified copy of the record, the previous paroi evidence was rendered wholly immaterial.
2. The magistrate having duly certified that the copy offered was a true copy of the record, it was the duty of the court to admit it in evidence. The truth of the certificate was not in issue, and it could not be collaterally tried. If the magistrate made a false certificate, it was nevertheless an official act, and it was the duty of the court to receive it as legal evidence, because it was duly certified by the proper officer.
3. Evidence of removals of the fence, prior to the award by which the title to it was determined, was entirely irrelevant. The question of probable cause depended on the facts, as they existed at the time the criminal prosecution against the plaintifi *578was commenced by the defendant. Its existence could not bé shown by evidence of acts on the part of the plaintiff, committed by him under claim of right, when the title to the fence was in dispute between the parties. This title having been definitively settled by the reference, the right of the plaintiff to remove the fence, and of the defendant to prosecute him therefor, could not be in any way affected by the previous acts of the plaintiff relative thereto. Exceptions overruled.