Stewart v. Massengale and Laughlin

Scire facias against Bail.

1st. Plea surrender in court

2d. Plea surrender out of court to the sheriff in discharge, with verifications, replications, and issues on both.

Parol proof of a surrender in court, was offered, which was objected to. The proof cannot be received, as such surrender in court is required by law to be recorded, and the only evidence is the record. And, in relation to the second plea, there should be a receipt under seal from the sheriff. The bail bond is under seal, and to discharge it there should be evidence of as high a nature, agreeably to the principles of the common law. The relaxations of this principle, by statute respecting payment, c, do not reach this case, which stands on the ground of the common law. The pleading on the first plea, is certainly wrong, — *Page 480 it should have been an issue to the Court, instead of the country.

I agree with the opinion delivered as to the first plea. In relation to the nature of evidence, admissible on the second, I am not perfectly satisfied; and as we will have to award a repleader, let the evidence proceed, and we shall be more fully in possession of the whole case.

It is not necessary to show this record. When records, or evidence of a higher nature, are referred to incidentally, which have no effect upon or connection with the point in dispute, it is not necessary to produce such testimony of a higher nature. If it were necessary to ascertain whether there was a trial, and the effect of the trial, it might be necessary to produce the record if one existed. The object here is to show what was said, *Page 481 and whether it were at a trial before a justice or elsewhere, is unimportant in this case.

accorded; upon which the sheriff, who was suggested to have received the surrender, was offered as a witness to prove it. He was objected to on the ground of interest.

The testimony of witnesses present three distinct views, as respects plaintiffs, defendants, and themselves; this objection is on the ground of interest. An interested witness cannot be compelled to swear. It is a privilege as to himself, which he has a right to claim; but, if he chooses, he may swear against his own interest, but not for it.¹

The objection therefore can only be a partial one, as it respects the plaintiff. If he be interested in swearing for the person offering the testimony, he is not competent as to that.

Another witness was proceeding to state what was said at a trial before a justice of the peace; this was objected to, on the ground that the record of that trial should be first shown.

¹ 1 Johns. 340, 362.