| Mass. | Nov 25, 1901
The recognizance sued on does not expressly state all the term's and conditions mentioned in Pub. Sts. c. 162, § 28, and the question arises, what construction shall be put upon its provisions. It plainly shows an intention on the part of the principal and surety that the principal shall have the benefit of the oath for the relief of poor debtors, and it contains in its condition the principal requirements mentioned in the statute. Under the Gen. Sts. c. 124, § 17, which in prescribing a recognizance is silent in regard to the obligation of the debtor to give notice of the time and place fixed for his examination, it was held that this obligation was implied. Whittier v. Way, 6 Allen, 288" court="Mass." date_filed="1850-10-15" href="https://app.midpage.ai/document/wheelock-v-pierce-6409449?utm_source=webapp" opinion_id="6409449">6 Allen, 288, 290. If we assume in favor of the creditor that, under the recognizance before us, the debtor was bound to have a notice of his application served on the creditor in accordance with the statute, and if we also assume without deciding that the notice issued and served was fatally defective because it was signed by the justice of the court instead of by the clerk under the seal of the court, (see St. 1889, c. 415, § 2,) this defect was one that the creditor might waive, and we are of opinion that his presence at the time and place fixed for the examination, and his arrangement with the court and with the debtor’s attorney for a continuance, without objecting to the notice, precludes him from taking advantage of this defect in the present action.
The most important question in the case is whether the debtor, under his recognizance, was required to see that the court with a competent presiding judge was open at the time and place fixed for the examination and for the continuance thereof, so that the proceedings could be properly conducted. One branch of the question is whether the general language of
It has often been held that the duty is on the debtor in these proceedings to see that a competent magistrate attends at the time and place fixed for his examination and at any adjournments of the case, and that his failure to do so is a breach of his recognizance. Adams v. Stone, 13 Gray, 396. Thacher v. Williams, 14 Gray, 324. Morrill v. Norton, 116 Mass. 487" court="Mass." date_filed="1875-01-09" href="https://app.midpage.ai/document/morrill-v-norton-6417928?utm_source=webapp" opinion_id="6417928">116 Mass. 487. Chesebro v. Barme, 163 Mass. 79" court="Mass." date_filed="1895-02-26" href="https://app.midpage.ai/document/chesebro-v-barme-6425168?utm_source=webapp" opinion_id="6425168">163 Mass. 79, 84. Buckley v. Mitchell, 165 Mass. 106" court="Mass." date_filed="1896-01-02" href="https://app.midpage.ai/document/buckley-v-mitchell-6425455?utm_source=webapp" opinion_id="6425455">165 Mass. 106. It is contended that this implied requirement of the stab ute.is changed by the St. 1889, c. 415, which, except where trial justices have jurisdiction, requires proceedings for the relief of poor debtors to be before courts instead of before magistrates. This subject was discussed in Chesebro v. Barme, ubi supra, and it was said in the opinion that the law in this particular
Although in most cases there is perhaps less need of special provision to procure the attendance of a judge when an examination is appointed to be held before a court, than when it is to be held before a magistrate, it would happen occasionally, if not frequently, by inadvertence, in courts where there is little business, that the court would not be in session at the time appointed, if no effort was made to bring the appointment to the attention of the judge. It is important that the rights of creditors should be preserved, and we think it better to hold that the duty is upon the debtor to see that a judge of the court is present. If it is impossible for him to do this, he has a remedy under the St. 1887, c. 442, § 3.
The failure of the debtor to have a judge of the court in attendance at the time appointed for the examination was a breach of the recognizance, which deprived the court of jurisdiction to proceed further unless the debtor availed himself of his rights under the statute last cited, and unless jurisdiction was regained under a new notice. The discharge of the debtor on the following day was therefore unwarranted. Adams v. Pierce, 177 Mass. 206" court="Mass." date_filed="1900-11-28" href="https://app.midpage.ai/document/adams-v-pierce-6427264?utm_source=webapp" opinion_id="6427264">177 Mass. 206. Whittier v. Way, 6 Allen, 288" court="Mass." date_filed="1850-10-15" href="https://app.midpage.ai/document/wheelock-v-pierce-6409449?utm_source=webapp" opinion_id="6409449">6 Allen, 288. Sweetser v. Eaton, 14 Allen, 157. Morgan v. Curley, 142 Mass. 107" court="Mass." date_filed="1886-06-29" href="https://app.midpage.ai/document/morgan-v-curley-6422089?utm_source=webapp" opinion_id="6422089">142 Mass. 107.
The record shows that by agreement of the parties the “ examination was continued to January 31, 1900, at 2 p. M., at the court room of said court, and to be in writing and. taken without the presence of a magistrate, at which time and place the court intended to be present to take such further action in the matter as it might deem proper.” We do not understand this language to mean that there was to be no session of the court at the time and place to which the case was continued, and that the case was to be left open under a general continuance. Such a disposition of the case the court had no power to make, as is shown in Adams v. Pierce, ubi supra. We interpret it as meaning a regular continuance to the hour appointed as a time certain, with
Exceptions sustained.