Cook v. Thayer

• Decision Date: 27 November 1877
• Citation: 123 Mass. 333
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Lycurgus V. B. Cook v. John A. Thayer & another

123 Mass. 333

Lycurgus V. B. Cook v. John A. Thayer & another

Supreme Court of Massachusetts

November 27, 1877

[Syllabus Material]

Hampshire. Contract on a recognizance entered into under the Gen. Sts. c. 124, § 17, by the first named defendant, as principal, and the other, as surety, and conditioned that John A. Thayer, who had been arrested on an execution in favor of the plaintiff, should appear on December 11, 1875 at ten o'clock, A. M., at the office of A. Perry Peck, a trial justice for said county, in Northampton, being the time and place fixed by the magistrate taking the recognizance, at the debtor's request, for his examination as poor debtor and from time to time until the examination was 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.

After the former decision, reported 121 Mass. 415, the case was tried in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows:

There was evidence tending to show that the debtor was at the office of the magistrate named in the notice, at the time specified, and remained there till about twenty minutes to eleven o'clock, A. M., when it was suggested that the creditor did not intend to appear, and the poor debtor's oath was administered; that the creditor had not appeared, but came in before eleven o'clock, and before the debtor left, for the purpose of examining the debtor. It was undisputed, that, as the plaintiff's counsel and the plaintiff were going to the magistrate's office, the defendant's counsel met them and said they were too late, that the oath had been administered, to which the plaintiff's counsel replied he thought not, that he was entitled to a full hour; that the plaintiff's counsel, upon reaching the magistrate's office, where the debtor was present, stated that he desired to examine the debtor, and was told by the magistrate that the oath had been administered; that a question was made whether it was not too late, the oath having been administered, and whether the creditor had any right to examine the debtor; and that the debtor, at the suggestion of the magistrate, left the office to see his counsel, the creditor and his counsel remaining at the office of the magistrate about fifteen minutes longer, and until about eleven o'clock. There was also evidence tending to show that the debtor, on the suggestion of the magistrate, went at once to the office of his counsel, and immediately returned to the office of the magistrate, and arrived there about eleven o'clock, -- the evidence as to whether before or after eleven o'clock being conflicting, -- and there remained about half an hour longer, for the purpose of fulfilling his recognizance and being examined; that the debtor, as he was returning to the magistrate's office, met the creditor and his counsel leaving the magistrate's office, on or near the stairway; that the plaintiff's counsel, after leaving the magistrate's office, went immediately to the office of the counsel of the debtor, and, while the debtor was at the magistrate's office, it was the subject of talk between the counsel of the plaintiff and the debtor's counsel, at the office of the latter, whether the debtor arrived at the magistrate's office, upon his return, before or after eleven o'clock, -- the debtor's counsel claiming that he arrived before, and the creditor's counsel claiming that he did not, and that at the expiration of the hour he had the debtor defaulted, before he came back; that there had been a breach of the recognizance, and that he should bring an action on it, unless a secured note was given or the creditor's claim paid. This was contradicted by the plaintiff.

The defendants offered the testimony of the debtor and of one of his counsel, who was acting for him at that time, to show what advice the debtor received from his counsel at his office, and that it was to return immediately to the magistrate's office and be ready to be examined; and that, in pursuance of that advice, the debtor returned to the magistrate's office. The judge excluded the evidence, but permitted the defendants to prove that the debtor returned to the magistrate's office in consequence of the advice given.

The evidence was conflicting on the point whether the debtor after his return, informed the magistrate, in any manner, that he was ready to be examined. There was also evidence tending to show that...