Ryder v. Ouellette

194 Mass. 24 | Mass. | 1907

Hammond, J.

This is an action against the surety on a poor debtor’s recognizance. There are two grounds of defence, first, that there was a surrender of the principal by the defendant, and second, that there has been no breach of the recognizance.

1. As to the surrender. It is provided in R L. c. 168, § 65, that a surety on a poor debtor’s recognizance may at any time surrender his principal and exonerate himself from further liability in the manner provided for the surrender of bail, “ and all the proceedings on such surrender shall be the same as provided in the case of bail.” The proceedings on the surrender by bail in the inferior courts, so far as material to this case, are set forth in R. L. c. 169, § 19. This section provides that when bail surrender their principal in court, either during the pendency of the original action or of scire facias, they shall secure the attendance of an officer qualified to serve legal process in the case, to whom the principal may be committed. The reason for this is obvious. It is an important provision for the benefit and security of the creditor. The agreed facts show that no such officer was present at the time of the attempted surrender in this case, and it is not shown that the creditor has waived his rights. See Pacific Ins. Co. v. Canterbury, 104 Mass. 438. It follows that the attempted surrender was inoperative, and that the liability of the defendant as surety still continued.

2. As to the breach. Even if it be said that the principal debtor did “ within thirty days from the date of his arrest deliver himself up for examination before some court of record,” it is certain that he never gave any notice thereof to the judgment creditor. It is no excuse that the court refused to issue the notice. For aught that appears the court refused to issue the notice for the reason that it could not be served in time. But, however that may be, the debtor takes upon himself the risk of proper notice being given to the creditor. See Thacher v. Williams, 14 Gray, 324; Hooper v. Cox, 117 Mass. 1, and cases cited; Adams v. Pierce, 177 Mass. 206. No notice having been given, the discharge of the debtor was beyond the power of the court. See Bliss v. Kershaw, 180 Mass. 99, 103.

Judgment affirmed.