Barrett Manufacturing Co. v. Shea , 225 Mass. 252 ( 1916 )

Pierce, J.

The record of the Third District Court of Southern Worcester is as follows:

“Preliminary Notice issued 4 April, 1914, returnable 18 April, 1914.

“Continued from 18 April, 1914, to 2 May, 1914.

“2 May, 1914, debtor defaulted, certificate of arrest authorized.”

The defendant does not now controvert the record that the examination was continued from April 18,1914, to May 2,1914, and it is admitted that the debtor did not appear on the day to which the examination was continued. The certificate annexed to the execution was properly issued under R. L. c. 168, § 20. Moreover, it was not competent by oral evidence to contradict the record. Tufts v. Hancox, 171 Mass. 148. Niles v. Silverman, 216 Mass. 242. Haskell v. Cunningham, 221 Mass. 49, 53. The court had jurisdiction of the subject matter (R. L. c. 168) and of the party. It follows that the arrest was legal. Everett v. Henderson, 146 Mass. 89.

The exceptions taken to the admission of the execution with the affidavit and certificate annexed, as also to the admission of the extended record of the Police Court of Fitchburg, must be overruled. McGrath v. Seagrave, 2 Allen, 443, 445.

The answer of the jury, “He did assent,” to the question “Did the debtor, John F. Crowley, assent or object to the naming of the Third District Court of Southern Worcester at Milford in the recognizance?” was not unwarranted. The jury saw the debtor and the defendant, and notwithstanding their testimony well may have believed that the debtor voluntarily and not through any compulsion of the judge assented to the naming of the Third District Court of Southern Worcester at Milford as the court at which he should deliver himself up for examination. The debtor did not deliver himself up in performance of the conditions of his recognizance and thereupon the obligation of the defendant became absolute.

We find no error in law in the conduct of the trial or in the rulings of the judge. It follows by the terms of the report that judgment is to be entered on the verdict.

So ordered.