Definition
Failure of record is a procedural outcome in common law pleading that occurs when a defendant who has pleaded a matter of record — that is, relied upon an existing court record as the basis or support for a plea — fails to produce that record when called upon to do so, or produces a record that does not in fact bar the plaintiff's action. When either of these events occurs, the defendant is said to "fail of his record," and judgment passes against him on that point.
The term describes both the event (the failure to produce) and the legal consequence (the collapse of the record-based plea). It belongs entirely to the procedural mechanics of common law pleading, specifically the system of issue formation and proof that preceded modern code pleading and civil procedure rules.
Common Confusion
Failure of record should not be confused with failure of proof in the general sense. Every failed defense involves a failure of proof in some broader meaning, but failure of record is a term of art with a precise procedural trigger: it applies specifically when a defendant has affirmatively pleaded a record — such as a prior judgment, a royal grant, or a court proceeding — and then cannot deliver it. The failure is not about insufficient evidence at trial; it arises at the pleading and production stage, before trial on the merits is reached. Researchers should also avoid conflating this with a defective or erroneous record, which raises different procedural questions.
Why It Matters in Research
This is a term of historical common law pleading that will appear almost exclusively in pre-code sources — English reports, early American decisions, and treatises on common law practice from roughly the seventeenth through nineteenth centuries. Researchers working in those materials need to recognize it as a stage-specific procedural event, not a general evidentiary concept.
The procedural sequence matters: under common law pleading, when a defendant pleaded a record, the plaintiff could traverse (deny) the existence of that record with a plea of nul tiel record — "no such record exists." The court would then give the defendant a day certain to produce the record. If the defendant failed to appear with the record, or appeared with a record that did not support the plea, the failure of record was declared and judgment went to the plaintiff on that issue. Researchers tracing early pleading practice will encounter this sequence as a discrete episode within the broader mechanics of issue formation.
The term drops out of active legal usage with the adoption of code pleading in American jurisdictions beginning in the mid-nineteenth century and accelerating through the adoption of the Federal Rules of Civil Procedure in 1938. A researcher encountering the phrase in a twentieth-century source should treat it as either a historical reference or a jurisdiction retaining archaic pleading forms.
Because the term appears in procedural contexts closely tied to the concept of record as a formal legal instrument, researchers should be attentive to what the underlying record was alleged to be: a judgment, a fine, a recovery, a letters patent, or some other matter of record. The nature of the underlying record affects what substantive law is implicated, even though failure of record itself is purely procedural.
Historical Dictionary Support
Black's Law Dictionary states the concept concisely: failure of the defendant to produce a record which he has alleged and relied on in his plea. This is accurate but compressed. Burrill's Law Dictionary provides the more useful description, tracing the procedural sequence from the plea of a record, through the plaintiff's denial, the day given to produce, and the consequences of non-production or production of an insufficient record. Burrill captures the two distinct ways failure of record can occur — non-production and production of a record that is no bar — which Black's treatment leaves implicit.
Neither source situates the term within the broader nul tiel record procedure with much elaboration, and neither addresses the substantive consequences in detail beyond noting that judgment passes against the defendant. Treatises on common law pleading — Chitty's Pleading and Stephen's Principles of Pleading, for example — provide the fuller procedural context that the dictionary entries compress.
Jurisdictional Note
Failure of record as a live procedural concept belongs to jurisdictions that retained common law pleading forms, primarily English courts and early American state courts. With the spread of code pleading and later the Federal Rules, the specific procedure generating failure of record was abolished. The concept survives today only as a historical reference point in jurisdictions that have entirely modernized their civil procedure rules.