Cook v. Thayer

121 Mass. 415 | Mass. | 1877

Ames, J.

The objection taken to the form of the recognizance is untenable. The condition prescribed by the statute is merely that the debtor will appear before “ some magistrate authorized ” to act in the premises; and it is undoubtedly intended to give him the right of selecting for himself any magistrate possessing the requisite jurisdiction. It has been decided that the omission to name the magistrate is not sufficient to render the recognizance of no validity. Adams v. Stone, 13 Gray, 396. Thacker v. Williams, 14 Gray, 324. It does not. appear that he was compelled to accept any particular magistrate by name as the one before whom he would appear for examination, but, on the contrary, that he made his own selection. Having seen fit to do so in advance, he has no right to object to the recognizance on that ground. It is in .substantial conformity to the statute.

By the terms of the condition the debtor was bound to be present before the magistrate within the appointed hour, and to submit to examination. The creditor was in attendance at the proper time for the purpose of making that examination. Upon the facts reported, it must be inferred that the debtor did not immediately submit to be examined, but took the objection that the creditor was too late, the oath having been already administered.

If he left the magistrate’s office without leave, refusing to be examined then, or to be examined at all, unless so advised by his counsel, he cannot be said to have submitted to examination, unless before the expiration of the hour, and in the presence of the magistrate, he waived his objection. The submission on his part should be absolute and unconditional. The creditor is not bound to wait beyond the appointed hour for the debtor to make up his mind whether he will submit to examination or not.

On the other hand if, with the leave of the magistrate, he left the office merely to obtain the advice and assistance of his counsel, intending to return if so advised, and actually returning with all reasonable dispatch for the purpose of the examination, it would be a substantial fulfilment of the condition of the recognizance, even though the hour had elapsed before his return. In other words, the permission of the magistrate would have the effect to extend the hour until the expiration of a reasonable time, for the purpose of allowing to the debtor an opportunity to see his counsel. The right of the magistrate to adjourn the hearing from day to day for reasonable cause is unquestionable, and a postponement for a shorter time, for reasons of convenience that appear to-him to be sufficient, is in the nature-of an adjourn-» ment and equally within his discretion. Under such circumstances the debtor cannot be said to have departed without leave. Mann v. Mirick, 11 Allen, 29. Toll v. Merriam, 11 Allen, 395. Sweetser v. Eaton, 14 Allen, 157.

The instruction finally given overlooked this distinction, and was therefore erroneous. It appears from the report that the debtor left the office “ at the suggestion of the magistrate,” — a form of expression which of course includes permission. It does not appear what advice he received from his counsel, or whether he saw his counsel at all; but it does appear that he soon returned, and the jury might possibly have found that he returned for the purpose of submitting to examination. But they were instructed that if he did not return till after eleven o’clock he was too late. Upon the view that we have taken he was not too late, unless he exceeded the extension of time impliedly allowed him by the magistrate ; and if, upon returning within that time, he was ready and offered to undergo the examination, there was no breach of the recognizance. New trial ordered.