Phillips v. Smith

110 Mass. 61

Opinion

Mobtoh, J.

The declaration having been lost, the defendant produced at the trial a copy thereof. If we assume that this copy was proved to the satisfaction of the court, and filed as a part of the record, yet it could not be used or commented on as evidence in the cause. The statute provides that “ neither the declaration, answer, nor any subsequent allegation, shall be deemed evidence on the trial, but allegations only whereby the party making them is bound.” Gen. Sts. c. 129, § 72. This case is governed by Walcott v. Kimball, 13 Allen, 460. Exceptions sustained,.