Whitton v. Harding

15 Mass. 535

Opinion

Curia.

Parol evidence is not admissible, to prove a surrender by bail of his principal. Indeed, the surrender itself must be of record, to justify the commitment of the principal, and, being a matter of record, the common rule of requiring the best evidence applies.

By the statute of 1803, c. 133, much formality is required in surrendering bail before a justice of the peace; and these are essential to the warrant of commitment which he is required to issue —a mere order to the officer to take the principal into custody not being sufficient, as in cases of surrender in the higher courts.

To allow the facts to be proved by paroi would be to render a record unnecessary and useless, and would produce much mischief. The plaintiff had judgment.

Footnotes

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(1)

Thayer for the plaintiff.

Bailey for the defendant.

Vide 1 Roll. 337,10. — Hobart, 210.