Carleton v. Wakefield

The examination of a poor debtor was fixed for three o’clock at a magistrate’s office, a lew minutes before four the magistrate postponed the examination till half past four, and left the office. At forty-one minutes past four the creditor left, and at a quarter of five the magistrate returned and waited with the debtor till half past five. Held, that there was no breach by the debtor of a recognizance given under the Gen. Sts. c. 124, § 10, con, ditioned to deliver himself up for examination before a magistrate, and appear at the tima and place fixed, and from time to time until the examination was concluded, making, ne default ac auy time fixed for his examination,

CosteACT on a recognizance entered into, under the Gen. Sts. e. 124, § 10, by Oliver H. Flanders, as principal, and the defendant, as surety, conditioned that Flanders, who had been arrested on an execution in favor of the plaintiff, would, within thirty days, “deliver himself up for examination, before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time and place 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.” At the trial in the Superior Court, before Devens, J., without a jury, it appeared that the examination of the debtor was fixed for June 8, at three o’clock in the afternoon, at the office of a master in chancery; that the parties appeared at the appointed time and place; that the magistrate was not then present, but appeared about eight minutes before four o’clock, adjourned or postponed the hearing until half past four o’clock, nothing being said by either party, and left the office. The magistrate did not remember whether he used the word “ adjourned ” or “ postponed,” in announcing the “ adjournment ” or “ postponement ” of the case until half past four o’clock. It also appeared that both the plaintiff and Flanders remained in the office until forty-one minutes past four o’clock, at which time the plaintiff left, and did not return ; that Flanders remained until the magistrate returned, which was at fifteen minutes before five o’clock; and that both Flanders and the magistrate remained in the office until half past five o’clock, when the plaintiff not being present, and the magistrate’s fee not being paid, Flanders was allowed to depart. The plaintiff requested the judge to rule “ that upon these facts Flanders had committed a breach of his recognizance, because he had no magistrate present at or before half past four o’clock, after the adjournment or postponement above referred to; and that the plaintiff was entitled to a verdict; ” but the judge refused so to rule, and found for the defendant. The plaintiff alleged excep tians.