Commonwealth v. Greene

95 Mass. 251

Opinion

Hoar, J.

No provision of law is shown which authorized the clerk of the police court to take the recognizance which the Commonwealth seeks to enforce, at the time and in the manner in which it was actually taken.

It was held in Boston v. Tileston, 11 Mass. 468, and affirmed in Wolcott v. Ely, 2 Allen, 338, that where the parties in an agreed statement of facts agree to a fact decisive of a title, an officer’s return, which would have been conclusive evidence upon a trial between them that the fact was otherwise, is not to be regarded. The same principle would prevent the holding the record conclusive in this case. The agreement as to the fact may have prevented the party, whose interest it is to establish it, from procuring an amendment of the return in the one case, or of the record of the recognizance in the other. "It amounts, in substance, to an agreement that there is no true record such as is declared on; and the agreement would authorize an amendment of the record, if applied for.

Judgment for the defendant.