Hills v. Jones

• Decision Date: 19 March 1877
• Citation: 122 Mass. 412
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Henry S. Hills & another v. J. G. Jones & another

122 Mass. 412

Henry S. Hills & another v. J. G. Jones & another

Supreme Court of Massachusetts

March 19, 1877

Middlesex. Contract on a recognizance entered into on July 10, 1875, under the Gen. Sts. c. 124, § 10, by the defendant Jones, as principal, and the other defendant as surety, and conditioned that Jones, who had been arrested on an execution in favor of the plaintiffs, should within thirty days from the day of his arrest deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time fixed for his examination, and from time to time until the same 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.

The case was submitted to the Superior Court, and after judgment for the plaintiffs, to this court on appeal, on an agreed statement of facts, in substance as follows:

The breach relied on was that at the time and place to which the examination of the debtor had been continued, namely November 20, 1875, at one o'clock in the afternoon, at J H. Tyler's office in Cambridge, the creditor and debtor duly appeared and remained until after two o'clock, but the magistrate did not appear or attend during the hour, and not until ten minutes after two o'clock of that day. No other magistrate attended to continue the proceeding. Both parties remained and were present when the magistrate appeared but did not proceed with the examination. The magistrate then requested the parties to proceed with the examination, but the creditor refused and objected to the farther jurisdiction of the magistrate in the premises on the ground that he had not appeared or attended until after the expiration of the hour.

Immediately after the creditor departed, the magistrate at the debtor's request continued the examination to another day at the same place, and gave the creditor five days' notice of such continuance at which last named time and place the debtor appeared, and, the creditor or any one in his behalf not appearing, the magistrate discharged the debtor.

All the proceedings, prior to November 20, 1875, were legal, regular and proper. If there was a breach of the recognizance judgment was to be entered for the plaintiff for $ 236; otherwise judgment for the defendants.

Judgment affirmed.

W. S. Stearns, for the plaintiffs.

H. J. Boardman & C. Blodgett, for the defendants.

Lord J. Colt, J., absent.

OPINION

Lord, J.

It has been settled by a series of decisions, too...