157 Mass. 374 | Mass. | 1892
It appears that the recognizance for breach of ■which this action is brought was taken by a special justice of the District Court of Central Berkshire. . It does not appear from the record that it was taken by him while exercising the powers and duties of the court. Without considering the matter of the notice, we think this is an insuperable objection to the plaintiff’s recovery.
The Pub. Sts. c. 162, § 27, provided that a poor debtor, arrested on execution (and the defendant is to be treated in
It follows, we think, from this examination, that the recognizance in this case should have been taken by the special justice when exercising the powers and duties of a justice of the District Court of Central Berkshire. There is nothing in the record which shows that such was the case. We think it should ha.ve appeared. The special justice could take the recognizance only when exercising the powers and duties of a justice of said court. His jurisdiction was dependent on that fact, and that fact not appearing, the recognizance is void. Commonwealth v. Fay, 126 Mass. 235. Brayman v. Whitcomb, 134 Mass. 525. Commonwealth v. Fay, 151 Mass. 380.
Exceptions sustained.