
    Fitch v. Hall.
    A surrender of tlie principal in court by tlie bail, is to be proved only by tbe record, and cannot regularly be pleaded as matter in pais.
    
    AotioN by' tbe sheriff oh a bail bond. Tlie defendant pleaded, that on tbe 1st day of April, A. D. 1779, while the action -was pending in court, and before final, judgment was rendered, the defendant did tender his principal to the plaintiff (he then being sheriff, etc.) to be taken into custody in discharge of his bond; but the sheriff refused to receive him. And that afterwards (to-wit), on the first Tuesday of April, 1779, while the action was still pending against his principal, the defendant did deliver him up in open court in discharge of his bond, and requested to be discharged therefrom; but the court neglected to make any record thereof, or to receive him into custody.
    The plaintiff demurred specially. 1st. Because of duplicity. 2d. For that the several matters pleaded were insufficient.
   By the Court.

The plea in bar is insufficient, not on the .ground of duplicity; for though two matters are plead, they are not sufficient matters: Averments immaterial require no traverse, and are mere surplusage. But the fault is in pleading a surrender of the principal in court as a matter in pais, and not a matter of record. Croke Ja. 402; 3 Buls. 192, Austin v. Monk; Hobart, 210; 1 Levinz, 211; Raymond, 50; Vin. A. P. B. A. 492, pl. 8; Poph. 185, 186; Keb. 761, 816. Every transaction in a court of record, pertaining to a process, of which the surrender of the principal in discharge of bail is one, regularly becomes a matter of record, and must be shown by record only, and plead accordingly.

Dyer, J.,

dissenting. It is agreed, that the producing the body of- the principal, and delivering him up in court, is a legal fulñlment of tbe condition of the bail bond, and is all the bail can be obliged to do. It is highly proper that the court cause an entry to be made thereof, but it is what is not in the power of the bail to enjoin or enforce. There is no positive law which requires it, or decidedly determines such entry to be the only evidence. The admitting proof of the fact by verbal and other testimony, does not contradict or oppose any positive record, but goes only to prove a material fact -where the record is wholly silent. The bail expressly avers in his plea, that the principal -was delivered up to the court in discharge of his bond; and the law makes the strongest construction in favor of the bail. I am, therefore, of opinion the plea in bar is sufficient. When the bail has done all in Ids power, and what the law requires, ought he to be subjected to pay over what was only the just debt of the principal, merely through the neglect of a clerk?

Note.— This judgment was afterwards affirmed in the Supreme Court of Errors.  