There are two grounds on which the court are of opinion that the defendant in review is entitled to a new trial.
First, by reason of the instruction to the jury respecting the *79record. The clerk in the insolvency proceedings against the plaintiff in review testified that he kept a record or minutes of those proceedings, and that he thought he returned a record to the office of the register of probate. He further testified that, at the request of the counsel of the plaintiff in review, he made up the papers, which were produced at the trial and were denominated a record, partly from recollection, assisted by memoranda made at the time, and partly from original papers furnished by the same counsel; and that those papers were substantially the record of what took place. If he returned a record to the register’s office, as he thought he did, it was the original record ; it has been lost, and secondary evidence of its contents is admissible. And it was for the jury to decide whether the true contents were proved by the evidence which was admitted. Although that evidence was in writing, and in the form of a record, and sworn to as substantially correct, yet it was not a record nor an authenticated copy of a record, nor entitled to the weight in evidence which belongs to a record. It was on this view of the law, we presume, that the defendant in review prayed for the following instruction: “ If the jury find there was a record kept by the clerk of the proceedings in insolvency, which was by him returned to the office of the register of probate, other than that now produced, the jury are not at liberty to consider the papers now said to be a record, as such.” This prayer was not granted, and the jury were so instructed that we think they may have understood that the papers produced might be regarded as a record, although the clerk, before making them up, had returned a record to the proper place of deposit. We need not decide whether they might have been regarded as a record, if none had been returned.
This is a case in which an adherence to the strict application of the rules of evidence requires that a verdict be set aside, although the court may have little or no belief that it was in any way affected by an omission strictly to apply those rules. It is impossible to know that it was not. See Lane v. Crombie, 12 Pick. 177,178; Thacher v. Jones, 31 Maine, 534.
Secondly, the testimony received for the purpose of showing *80that a third person, not on the record, was a party in interest in this case, was not admissible.
The other exceptions argued for the defendant in review are to be overruled.
The union of the offices of clerk and assignee in the same person was never forbidden by any statute. Under the new system of courts of insolvency established by St. 1856, c. 284, a register could not be an assignee. Nor can he under the Gen. Sts. c. 119, § 9.
It was doubtless necessary to the jurisdiction of the commissioner that the plaintiff in review should be a resident in the Commonwealth, and have his place of business or his residence in the county of Norfolk. But his jurisdiction did not depend on the allegation of such residence in the petition for proceedings in insolvency. New trial granted.