Howard v. Roach

• Citation: 115 N.E. 289,226 Mass. 80
• Parties: HOWARD v. ROACH.
• Decision Date: 27 February 1917
• Court: United States State Supreme Judicial Court of Massachusetts

226 Mass. 80

115 N.E. 289

HOWARD

v.ROACH.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 27, 1917.

Report from Superior Court, Middlesex County; Wm. Hamilton, Judge.

Action by Albert S. Howard against Andrew F. Roach for breach of a recognizance given by a judgment debtor. On report from the superior court. Judgment entered for plaintiff.

Qua, Howard & Rogers and Melvin G. Rogers, all of Lowell, for plaintiff.

Edward J. Tierney and Geo. F. Toye, both of Lowell, for defendant.

DE COURCY, J.

George H. Brown, the judgment debtor, was arrested December 18, 1915, on an execution to which was annexed the certificate of the magistrate that he was satisfied there was reasonable cause to believe that the second and third charges under R. L. c. 168, § 17, were true. When taken before the presiding justice of the police court of Lowell, Brown recognized, with the defendant Roach as surety, pursuant to chapter 168, § 30, namely, ‘that within thirty days from the day of his arrest, he will deliver himself up for examination before a police, district or municipal court, or a trial justice, giving notice of the time and place thereof’ as provided in said chapter, ‘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, and abide the final order of the magistrate thereon.’ It appears from the records of said police court that on January 14, 1916, counsel of record for the debtor Brown appeared at the office of the clerk of that court and, in the absence of the debtor, made request for a citation to issue in his behalf, setting forth that Brown desired to take the oath for the relief of poor debtors; and that on the same day a citation duly issued, returnable before said court February 18, next, at 10 a. m. The controlling question in the case is whether legally this appearance by counsel was a compliance with the requirement that the debtor should ‘deliver himself up for examination.’

The language of the statute, giving to the words their plain ordinary meaning, implies that the debtor shall present himself in person before the magistrate, when he makes application to take the oath for the relief of poor debtors. The history of the statute confirms the view that the physical presence of the debtor is required. This phrase ‘will deliver himself up for examination’in R. L. c. 168, § 30, has come down to us from St. 1855, c. 444, ‘An act to abolish imprisonment for debt and to punish fraudulent debtors.’ Before that time the debtor was liable to be imprisoned for any debt not less than $10. R. S. c. 97, § 44. When committed on execution, and unable to pay the debt, if he desired to take the benefit of the poor debtor law, he so represented to the jailer, and the jailer made known the same to some justice of the peace for the county. R. S. c. 98, § 1. The examination was held within the limits of the prison and until that time the debtor ordinarily remained in jail. The 1855 act (section 9) permitted the debtor, if he did not desire to have any time fixed for examination, to enter into a recognizance with sufficient surety that ‘within ninety days he will deliver himself up for examination,’ giving the required notice to his creditor. Thereupon the debtor was relieved from the the control of the officer. Jacot v. Wyatt, 10 Gray, 236, 239.

In the light of the laws with reference to imprisonment for debt existing in the colony, province and commonwealth until the act of 1855 (see Chronological List of Statutes in Appendix to Grinnell's Poor Debtor Law of Massachusetts) it seems clear that in the 1855 act the Legislature used the words ‘deliver himself up’ in their natural meaning, as requiring the surrender of the body of the debtor in the presence of the magistrate. The same language was retained in the subsequent statutes touching the subject: St. 1857, c. 141, § 10; G. S. c. 124, § 10 (which reduced the period in which the debtor should deliver himself up to ‘within thirty days' from the day of his arrest); P. S. c. 162, § 28; St. 1888, c. 419, § 6; St. 1891, c. 271; R. L. c. 168, § 30.

While the precise question here presented never has been decided it seems always to have been assumed that there must be a physical delivery of the body in order to comply with the condition of the recognizance and the terms of the statute. To refer to a few instances: In City Nat. Bank of Manchester v. Williams, 122 Mass. 534, it was said: ‘The notice is to be given, or at least may be given, at the time the party delivers himself up for examination.’ In Barnes v. Ladd, 130 Mass. 557, which decided that this provision in the recognizance was complied with if the notice to the creditor was duly issued within the thirty days, although the return day for examination was beyond that time, the words ‘surrender himself’ are used in the opinion as the equivalent of ‘will deliver himself up.’ In Marple v. Burton, 144 Mass. 79, 80,10 N. E. 468, it was said: ‘The debtor should...