166 Mass. 296 | Mass. | 1896
This is an action upon a recognizance entered into by the defendant before a master in chancery, under Pub. Sts. c. 162, § 28, as amended by St. 1888, c. 419, § 6, as surety for one Hillman, who had been arrested on mesne process in a suit brought against him by the plaintiff. The recognizance
The condition of the recognizance is that said Hillman, “ some time within thirty days from the day of his arrest, as above mentioned, will deliver himself up for examination before some court authorized to act, as provided by chapter 419, Acts of 1888, giving notice of the time and place thereof in the manner provided by law, and appear at the same time and place fixed for his examination, and from time to time until the same is concluded, and not depart without leave of said court, making no default at any time fixed for his examination, and abide the final order of said court thereon.”
Shortly after the arrest and recognizance, Hillman applied to the Municipal Court of Boston to take the oath that he did not intend to leave the State. Due notice was given to the plaintiff, who was present at the time and place appointed for the examination. The oath was refused, and a certificate to that effect was attached to the writ. Hillman waited in court until after his examination had been concluded and the certificate had been attached to the writ, and the sheriff had had ample and reasonable opportunity to take him into custody, and then departed, after a statement by the court that its duty in the matter was ended.
The plaintiff contends that Hillman’s neglect to give notice within thirty days of his desire to take the poor debtor’s oath is a breach of recognizance.
We do not think so. When Hillman was arrested, there were several courses open to him. He could give bail for his appearance at court, or go to jail and give notice of his desire to take the poor debtor’s oath or the oath that he did not intend to leave the State, or both, or he could recognize with surety that he would deliver himself up for examination within thirty days.