Bliss v. Kershaw
| Decision Date | 26 November 1901 |
| Citation | 61 N.E. 823,180 Mass. 99 |
| Parties | BLISS v. KERSHAW. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. A. Pease, for plaintiff.
Swift & Grime, for defendant.
The recognizance sued on does not expressly state all the terms and conditions mentioned in Pub. St. c. 162, § 28, and the question arises, what construction shall be put upon its provisions? It plainly shows an intention on the part of the principal and surety that the principal shall have the benefit of the oath for the relief of poor debtors, and it contains in its condition the principal requirements mentioned in the statute. Under Gen. St. c. 124, § 17, which in prescribing a recognizance, is silent in regard to the obligation of the debtor to give notice of the time and place fixed for his examination, it was held that this obligation was implied. Whittier v. Way, 6 Allen, 288-290. If we assume in favor of the creditor that under the recognizance before us the debtor was bound to have a notice of his application served on the creditor in accordance with the statute, and if we also assume, without deciding, that the notice issued and served was fatally defective because it was signed by the justice of the court instead of by the clerk under the seal of the court (see St 1889, c. 415, § 2), this defect was one that the creditor might waive; and we are of opinion that his presence at the time and place fixed for the examination, and his arrangement with the court and with the debtor's attorney for a continuance, without objecting to the notice, preclude him from taking advantage of this defect in the present action.
The most important question in the case is whether the debtor under his recognizance, was required to see that the court, with a competent presiding justice, was open at the time and place fixed for the examination and for the continuance thereof, so that the proceedings could be properly conducted. One branch of the question is whether the general language of the recognizance by implication binds the debtor to do all things pending the examination and previous to it that are required by the language of Pub. St. c. 162, § 28. We are of opinion that it does. Within 30 days he is to 'deliver himself up for examination as to his estate, and for the taking of the oath for the relief of poor debtors.' The delivery of himself is to be not merely for examination, but for the taking of the oath. This means that there is to be a delivery which will enable the creditor to make an examination of him such as the statute contemplates, and that he shall continue in the attitude of one who has been delivered up, and who is, in a sense, in the custody of the law, until the examination is completed, and until the time has come for taking the oath, if the examination is favorable to him, and if there has been no default or omission on the part of the creditor. In this respect we are of opinion that the legal effect of the recognizance is the same as if it had contained the words of the statute, 'giving notice of the time and place thereof as herein provided, and appear at the time 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.' This construction of the language gives effect to reasonable implications, as has often been done in previous cases. Morrill v. Norton, 116 Mass. 487; Whitter v. Way, 6 Allen, 288; Buckley v. Mitchell, 165 Mass. 106, 42 N.E. 557; Dalton-Ingersoll Co. v. Hubbard, 174 Mass. 307, 54 N.E. 862; Damon v. Carrol, 163 Mass. 404-410, 40 N.E. 185. It has often been held that the duty is on the debtor in these proceedings to see that a competent magistrate attends at the time and place fixed for his examination and at any adjournments of the case, and that his failure to do so is a breach of his recognizance. Adams v. Stone, 13 Gray, 396; Thacher v. Williams, 14 Gray, 324; Morrill v. Norton, 116 Mass. 487; Chesebro v. Barme, 163 Mass. 79-84, 39 N.E. 1033; Buckley v. Mitchell, 165 Mass. 106, 42 N.E. 557. It is contended that this implied requirement of the statute is changed by St. 1889, c. 415, which, except where trial justices have jurisdiction, requires proceedings for the relief of poor debtors to be before courts, instead of before magistrates. This subject was...
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