193 Mass. 203 | Mass. | 1906
It is not uncommon in practice in an action pending in a district, municipal or police court for a defendant to consent to the entry of a default, but he is not thereby estopped from taking and entering an appeal from the judgment, and the motion of the plaintiff to dismiss for want of jurisdiction was properly denied. Preston v. Henshaw, 192 Mass. 34. The defendant’s principal having been arrested on an execution in favor of the plaintiff entered into the recognizance provided by B. L. c. 168, § 30, and duly made application to take the oath for the relief of poor debtors. A notice of the time and place appointed for the examination having been served, the only question is whether the debtor made default at the last continuance thereby causing a breach of the recognizance. The burden of proving a breach rested upon the plaintiff, and the only evidence offered was a record the material portions of which appear in the report. Blake v. Mahan, 2 Allen, 75. Toll v. Merriam, 11 Allen, 395, 397. This brief memorandum summarizing the proceedings is more in the nature of docket entries than of a formal record, which apparently has not been made, but as these minutes contain a statement of what was done, until ex
Judgment for the defendant.