
    Thomas Whitton versus Daniel F. Harding.
    
      A surrender by bail of his principal before a justice of the peace must bo a matter of record, and cannot be proved by paroi evidence.
    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. Sargent in a few minutes left the court, the justice having taken no measures in consequence of the supposed surrender, nor made any record thereof. Two questions arose at the trial before Thatcher, J., at the last September term: I. Whether the facts proved amounted to a surrender; 2. Whether a surrender, might be proved by paroi evidence.
   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.

Thayer for the plaintiff.

Bailey for the defendant. 
      
       Vide 1 Roll. 337,10. — Hobart, 210.
     