Adams v. Pierce

• Decision Date: 28 November 1900
• Citation: 177 Mass. 206,58 N.E. 591
• Parties: ADAMS v. PIERCE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 206

58 N.E. 591

ADAMS v. PIERCE et al.

Supreme Judicial Court of Massachusetts, Essex.

November 28, 1900

COUNSEL

W. S. Peters and H. J. Cole, for plaintiff.

C. H Pon and E. B. Fuller, for defendants.

OPINION

HOLMES C.J.

This is an action upon a recognizance given under Pub. St. c. 162, § 28. The defendant Pierce was arrested on a judgment of the police court of Haverhill, entered into the recognizance, and gave notice of his desire to take the oath for the relief of poor debtors, on April 13, 1896. The record of the court then become the Central district for Northern Essex, shows that he appeared before the court on May 13, 1896, in compliance with the notice, 'and the case was continued.' It shows nothing more until 1897, when, on March 13th, the debtor filed a petition that a day be set for his examination, which was done, and on March 27th the oath was administered. The judge of the superior court was of opinion that these facts disclose a breach of the conditions of the bond, and found for the plaintiff.

The question arises on the words 'and the case was continued.' These words mean, on their face, a general continuance, not a continuance to a time fixed by adjournment; and the natural construction is shown to be the true one by the debtor's subsequent petition 'that a day be set for his examination.' The plaintiff denies that the magistrate has power, under the statute, and the terms of the recognizance, to continue the hearing except to a day certain.

The language of the statute is, 'The magistrate may adjourn the case from time to time.' Pub. St. c. 162, § 35. See Id. § 18. So the recognizance is conditioned for appearance at the time fixed for his examination, 'and from time to time until the same is concluded.' In this class of cases, which, until lately, came before an inferior magistrate alone, we are of opinion that these words probably were intended to convey the notion of adjournmants to fixed times, and that it is better that they should be so construed. We understand that this has been the construction adopted in practice. The creditor is entitled to have his execution satisfied unless the debtor can take the oath. It hardly can have been the intention of the statute to allow an inferior magistrate selected by the debtor to suspend indefinitely the determination of the creditor's rights. The ground goes deeper than the nature of the jurisdiction of justices' co...