Whitton v. Harding

Decided June 15, 1819

Massachusetts Supreme Judicial Court · decided 1819-06-15

Scire Facias against the defendant, as bail for one Sargent in an action brought against him by the plaintiff before a justice of the peace. A deputy sheriff happened to be present at the time of the trial before the justice; and, soon after the trial was over, Harding said he wished to surrender the principal, and afterwards said to the justice that he tendered the body of the principal to the court, and * wished to be discharged from his suretiship.

Good law ✅— No negative treatment on recordhow we know

Decided 1819-06-15

How this case has been cited

Cited by 4 later decisions — most recently November 1941

4 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Curia.

¶1Parol 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.

¶2By 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.

¶3To 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. (1)

¶4Thayer for the plaintiff.

¶5Bailey for the defendant.

¶6 Vide 1 Roll. 337,10. — Hobart, 210.