Cook v. Thayer

• Decision Date: 06 January 1877
• Citation: 121 Mass. 415
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Lycurgus V. B. Cook v. John A. Thayer & another

121 Mass. 415

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

Supreme Court of Massachusetts

January 6, 1877

Argued September 21, 1876

Hampshire. Contract on a recognizance entered into under the Gen. Sts. c. 124, § 17, by the defendant John A. Thayer as principal, and the defendant John Thayer, 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 the 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.

Trial in the Superior Court, before Allen J., who reported the case for the determination of this court in substance as follows:

When the recognizance was offered in evidence the defendants objected that it did not conform to the statute, and was invalid and incompetent. It was agreed that the notice of intention to take the poor debtor's oath was issued at the time when the recognizance was taken. The recognizance was admitted, and the defendants excepted.

There was evidence that the poor debtor's oath was administered to the debtor at about twenty minutes before eleven o'clock, A. M., at the place and on the day, and by the magistrate, named in the notice. The creditor had not appeared, but came in before eleven o'clock, and before the debtor left, for the purpose of examining the debtor. 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 the debtor, "at the suggestion of the magistrate," left the office to see his counsel. The creditor remained about fifteen minutes longer, until about eleven o'clock, and, soon after he left, the debtor returned. Whether the debtor returned before or after eleven o'clock, and whether he returned for the purpose of submitting to examination, were controverted matters, on which there was conflicting evidence. It was also a controverted matter whether, when the creditor appeared the debtor refused to submit to examination, and left the magistrate's office with that purpose, or whether he left to secure the aid of his counsel.

The defendants asked the judge to instruct the jury, that, if the debtor left the office to consult his counsel as to whether he should submit to examination, intending to return for examination if so advised, and did return for that purpose without unnecessary delay, there would be no breach of the recognizance even if he did not reach the magistrate's office until after eleven o'clock. The judge declined so to rule, and submitted to the jury this question: "Was the debtor present for examination before the magistrate after the creditor appeared, and within the hour?" And the jury were instructed that, "If, when the creditor appeared, the debtor did not refuse to submit to examination, but left the office to call his counsel, intending to return and be examined, and did return for that purpose, the question should be answered in the affirmative, whether he returned before or after eleven o'clock; but if the debtor refused to be then examined, and left to consult his counsel, intending to return for examination, if so advised, and not to submit to examination unless he should be so advised, and did not return until after eleven o'clock, the question should be...