Definition
Failing of record is a procedural outcome in common law pleading that occurs when a defendant, having pleaded matter of record as a bar to an action and having averred that such a record exists, is subsequently unable to produce that record when called upon to do so by the court.
The sequence is as follows: a plaintiff brings an action; the defendant responds with a plea asserting some matter of record — such as a prior judgment, a royal grant, or another court record — as a complete bar to the plaintiff's claim, and avers that the record will prove it. The plaintiff then responds with the plea of *nul tiel record* — literally, "no such record" — denying that any such record exists. The court gives the defendant a day certain to produce the record. If the defendant appears on that day and cannot produce the record he has vouched, he is said to *fail of his record*. The consequence is that the plaintiff is entitled to judgment — typically judgment by default on the issue of record.
The term captures both the act of failure (failing to produce) and the procedural status it creates (a party who has failed of record).
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Common Confusion
The phrase may suggest a filing defect or a lapse in record-keeping — that some document was lost, incomplete, or improperly filed. That is not what the term means. Failing of record is not a clerical or administrative failure; it is a specific pleading outcome. The defendant made an affirmative assertion — that a record existed and would vindicate his position — and then could not back that assertion up when required to. The failure is evidentiary and strategic, not administrative.
Researchers should also not conflate this with *variance* between a pleaded record and the record actually produced. If a record is produced but does not match the plea, that is a different defect. Failing of record requires that no qualifying record be produced at all.
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Why It Matters in Research
This term belongs to the procedural vocabulary of common law special pleading, a system that was largely displaced in American jurisdictions by code pleading in the mid-nineteenth century and subsequently by notice pleading under modern rules. Researchers will encounter failing of record almost exclusively in pre-code cases and in treatises on the old forms of action — particularly in English sources and in early American state court opinions that followed English common law procedure closely.
The critical research trap is anachronism. A researcher reading a nineteenth-century case who encounters a reference to a defendant who "failed of his record" and treats it as a generic observation about missing documents will misread the legal significance entirely. In context, failing of record triggered a specific procedural consequence: it resolved the issue joined by the *nul tiel record* plea, and entitlement to judgment followed as a matter of course. It was not a discretionary matter for the court.
For corpus researchers working in Law Mind, this term will surface most reliably in:
- Reports from English common law courts prior to the Judicature Acts (1873–75)
- Early American appellate opinions, particularly from jurisdictions that retained formal common law pleading into the 1840s–1860s
- Treatises on pleading and practice, including Chitty's *Pleading*, Stephen's *Principles of Pleading*, and their American commentators
The *nul tiel record* plea — the procedural trigger for a failing of record situation — is the more commonly indexed term. Researchers who understand the connection will find that searching for *nul tiel record* surfaces the broader context in which failing of record appears.
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Historical Dictionary Support
Rapalje and Lawrence provide the most complete account of the term's procedural mechanics and are reliable on this point. Their entry traces the full sequence — plea of matter of record, averment to prove by the record, plaintiff's *nul tiel record* response, day given by the court, and the consequence of failure — which matches the general account in Chitty and Stephen on common law pleading.
Black's Law Dictionary reproduces a truncated entry that appears to break off mid-sentence ("who alleges L M"), suggesting a transcription or printing error in that edition. The entry is not useful standing alone and should not be relied upon without cross-reference. Researchers encountering the Black's entry in isolation should treat it as incomplete.
A separate Black's entry for the same term references Scotch law and the distinction between powers founded on consent versus property — a usage that appears to be either a misattribution or a conflation under the same heading. That definition describes a concept from Scottish equity and has no evident connection to the procedural English common law meaning of failing of record. Researchers should treat the two as distinct usages; the Scottish entry does not illuminate the pleading term.
Historical sources generally do not address failing of record as a standalone doctrine; it appears in the pleading treatises as an incident of the *nul tiel record* issue rather than as a freestanding topic. This means the concept is underindexed relative to its procedural significance.
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Jurisdictional Note
Failing of record is a term of English common law pleading practice. In American jurisdictions, the adoption of the Field Code (New York, 1848) and subsequent code-pleading reforms in other states eliminated the formal system of special pleading within which this concept operated. The term has no direct counterpart in modern federal or state civil procedure.
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