226 Mass. 80 | Mass. | 1917
George H. Brown, the judgment debtor, was arrested December 18, 1915, on an execution to which was annexed the certificate of the magistrate that he was satisfied there was reasonable cause to believe that the second and third charges under R. L. c. 168, § 17, were true. When taken before the presiding judge of the Police Court of Lowell, Brown recognized, with the defendant Roach as surety, pursuant to c. 168, § 30, namely, “that within thirty days from the day of his arrest he will deliver himself up for examination before a police, district or municipal court, or a trial justice, giving notice of the time and place thereof as herein provided, and appear at the time fixed for his examination and from time to time until the same is concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon.” It appears from the records of said Police Court that on January 14, 1916, the counsel of record for the debtor Brown appeared at the office of the clerk of that court and, in the absence of the debtor, made request for a citation to issue in his behalf, setting forth that Brown desired to take the oath for the relief of poor debtors; and that on the same day a citation duly issued, returnable before said court February 18, next, at 10 A. M. The controlling question in the case is whether legally this appearance by counsel was a compliance with the requirement that the debtor should “deliver himself up for examination.”
The language of the statute, giving to the words their plain ordinary meaning, implies that the debtor shall present himself in person before the magistrate, when he makes application to take the oath for the relief of poor debtors. The history of the statute confirms the view that the physical presence of the debtor is required. This phrase “-will deliver himself up for exami
In the light of the laws with reference to imprisonment for debt existing in the Colony, Province and Commonwealth until the act of 1855 (see Chronological List of Statutes in Appendix to Grinnell's Poor Debtor Law of Mass.) it seems clear that in the 1855 act the Legislature used the words “deliver himself up” in their natural meaning, as requiring the surrender of the body of the debtor in the presence of the magistrate. The same language was retained in the subsequent statutes touching the subject: St. 1857, c. 141, § 10. Gen. Sts. c. 124, § 10 (which reduced the period in which the debtor should deliver himself up, to “within thirty days” from the day of his arrest). Pub. Sts. c. 162, § 28. St. 1888, c. 419, § 6. St. 1891, c. 271. R. L. c. 168, § 30.
While the precise question here presented never has been decided it seems always to have been assumed that there must be a physical delivery of the body in order to comply with the condition of the recognizance and the terms of the statute. To refer to a few instances: In City National Bank of Manchester v. Williams, 122 Mass. 534, it was said “the notice is to be given, or at least may be given, at the time the party delivers himself up for examination.” In Barnes v. Ladd, 130 Mass. 557, which decided that this provision in the recognizance was complied with if the notice to the creditor was duly issued within the thirty days, although
These excerpts from opinions at least indicate that it was thought the terms of the statutes “will deliver himself up” contemplated a personal appearance of the judgment debtor before the magistrate within the thirty days, as well as at the time of his examination. And such appears to have been the practice, as shown by all the cases called to our attention. See Grinnell, Poor Debtor Law of Mass. § 395. There is nothing inconsistent with this view in Mann v. Mirick, 11 Allen, 29, which held that the magistrate had power to entertain a motion of the debtor’s attorney for an adjournment that was expressly provided for by statute; nor in McLeod v. Freeman, 122 Mass. 441, where the debtor’s attorney, in his absence, filed a motion in arrest of judgment, which the magistrate continued for further hearing, and so retained jurisdiction of the whole case.
In view of the foregoing we are of opinion that on January 14, 1916, as the debtor Brown did not deliver himself up, the Police Court did not acquire jurisdiction to issue the notice that he
It does not avail the defendant that Brown appeared in the clerk’s office on January 17, because no citation was issued by the court on or after that day. And the plaintiff did not waive his rights by being present in court on February 18, 1916, as he then asserted that there had been a breach of the recognizance, and stated that he had brought this action thereon. Francis v. Howard, 115 Mass. 236.
On the facts stated in the report, there was a breach of the recognizance by reason of the failure of the judgment debtor within thirty days from the date of his arrest to deliver himself up for examination and to give notice to the plaintiff of the time and place fixed for the hearing. Henderson v. Parsons, supra. In accordance with the report judgment is to be entered for the plaintiff, and execution is to issue for the sum of $415 damages;, and it is
So ordered.
