Tibbetts v. Handy

W. Allen, J. It must be taken to be settled law, that an appeal under the Pub. Sts. c. 155, § 28, cannot be allowed, (except under the exception in § 29,) unless the party appealing recognize according to the provisions of § 29, although he 'may not be in fault, and may be ready and may offer to recognize. Parker v. Snow, 143 Mass. 423. Henderson v. Benson, 141 Mass. 218, and cases cited. The same rule must be applied to the provisions of §§ 30-32, which constitute the exception in § 29. They authorize, in lieu of the recognizance, a deposit by the appellant with the trial justice of a reasonable sum, to be fixed by the justice, a certificate of which shall be issued by him to the depositor, and provide that the trial justice shall transmit the sum deposited to the clerk of the Superior Court, with the papers, and that the clerk shall hold such sum until the final disposition of the case, when he shall pay it as the court may order. The record of the trial justice does not show any deposit with the justice, or any offer to make a deposit. On the contrary, a copy of a bond approved by the justice, with the same condition [539] as is required in a recognizance, is among the papers produced in the Superior Court. We think that the ruling of the court was right, and that it was not competent for the defendant to show compliance with, the statutory provisions by paroi evidence that he offered to recognize, or that he offered to deposit with the trial justice, and tendered to him, a sufficient sum in lieu of a recognizance, which recognizance or deposit the justice refused to accept. If the defendant without fault failed to perfect his appeal, he has his remedy, not by treating the appeal as perfected, but by proceedings in review. Keene v. White, 136 Mass. 23. Exceptions overruled.