City National Bank v. Williams

122 Mass. 534 | Mass. | 1877

Lord, J.

The fallacy of the plaintiff’s position is in the assumption that the recognizance of the defendants- is an engagement that the debtor shall be examined within thirty days of the day of his arrest, having previously given due notice of his intention to submit himself to examination. But this is not the contract. The contract is that “ he will deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof as herein provided.” Gen. Sts. c. 124, § 10. There is nothing in the statute to indicate that these acts may not be contemporaneous. The present participle rather implies that the notice is to be given, or at least may be given, at the time the party delivers himself up for examination, while the remaining language, immediately following that quoted, “ and appear at the time fixed for his examination,” is strongly corroborative of the view. Section 45 of same chapter proyides: “ Whoever recognizes as surety for another, as provided in this chapter, may, at any time before breach of recognizance, surrender his principal and exonerate himself from all further liability, in the manner provided for the surrender by bail.”

In this case, the party was surrendered before the expiration of thirty days from the day of his arrest. There could have been then no breach of the recognizance. A right of action arises immediately upon a breach; but on this recognizance there could be no right of action till after thirty days, for the party has the whole of thirty days in which to deliver himself up for examination. Judgment affirmed.