Barnes v. Ladd
| Decision Date | 05 April 1881 |
| Citation | 130 Mass. 557 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Nancy Barnes v. Noah D. Ladd & others |
Argued October 7, 1880
Worcester. Contract upon a poor debtor's recognizance entered into on January 5, 1880, by Amasa C. Morse as principal, and the defendants as sureties, and containing among the usual conditions, that Morse should, within thirty days fro said January 5, "deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof" as by law provided. The case was submitted to the Superior Court, and after judgment for the defendants, to this court, on appeal, on agreed facts, in substance as follows:
Morse was arrested, on January 5, 1880, on an execution in the plaintiff's favor, and the recognizance in suit was entered into by him and the defendants on that day. On February 2, Morse applied to a magistrate to take the oath for the relief of poor debtors, and the magistrate thereupon issued a notice to the creditor to appear at his office in Worcester on February 4 for the usual examination of the debtor, which notice was in proper form, but was not properly served by reason of the mistake of the officer to whom it was committed for service. Thereupon, on February 4, the debtor made application to the magistrate for a new notice, and the magistrate issued a new notice in proper form, appointing the examination at his office in Worcester on February 7 at two o'clock P. M. This notice was duly served on the plaintiff's attorney at Southbridge on February 4 at eight o'clock P. M. The plaintiff lived in Thompson, Connecticut, which is eight miles from Southbridge and twenty-eight miles from Worcester, and her attorney resided twenty miles from Worcester. At the time and place appointed in this second notice for the examination, Morse appeared; and after waiting until the expiration of the hour, neither the plaintiff nor anybody in her behalf appearing, the magistrate administered the oath to Morse.
If the action could be maintained, judgment was to be entered for the amount of the recognizance; otherwise, judgment for the defendants.
Judgment Affirmed.
F. P. Goulding, for the plaintiff.
W. S. B. Hopkins, for the defendants.
This case has been argued by the plaintiff's counsel upon his construction of the statute that the poor debtor must not only surrender himself within the thirty days limited by his recognizance, but must surrender himself at such time during the thirty days as shall afford opportunity to give the notice required to the creditor to appear within the thirty days and examine the debtor. Some portions of his argument would imply that the debtor must be actually examined and the oath administered within the thirty days. If, however, the former position cannot be maintained, this claim would be wholly groundless.
Our first inquiry is, whether the recognizance means that he shall surrender himself so long before the expiration of the thirty days as to enable the creditor to receive the statute notice before their expiration; and this depends upon the meaning of the words that he will within thirty days from the day of his arrest "deliver himself up for examination before some magistrate authorized to act." Does this imply anything more than presenting himself to the magistrate for the purpose of initiating the proceedings for his examination and discharge? We think it means only that. If it were otherwise, the time at which he must surrender would be uncertain, dependent upon the distance of the residence of the creditor from the place appointed for the examination. Such construction might hazard the rights of a surety upon the...
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...the debtor was required to have the time and place appointed by the court. It was not for the debtor to fix the time. See Barnes v. Ladd, 130 Mass. 557, 560;Howard v. Roach, 226 Mass. 80, 81, 83, 115 N.E. 289;H. B. Smith Co. v. Judge of Third District Court of Eastern Middlesex, 246 Mass. 1......
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Modern Finance Co. v. Martin
...It is unnecessary to determine at what precise time the court acquires jurisdiction in a proceeding of this character (see Barnes v. Ladd, 130 Mass. 557 , 560; v. Parsons, 211 Mass. 69 , 71; H. B. Smith Co. v. Judge of the Third District Court of Eastern Middlesex, 246 Mass. 190), inasmuch ......
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...within thirty days from the date of the arrest. The return day and service, however, may be after the expiration of that period. Barnes v. Ladd, 130 Mass. 557;Marple v Burton, 144 Mass. 79, 10 N. E. 467. The debtor had the duty to make proper service of the notice and to prove to the court ......
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