Fitch v. Hall

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 *19record, and must be shown by record only, and plead accordingly.

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.