Marple v. Burton

• Decision Date: 25 February 1887
• Citation: 144 Mass. 79,10 N.E. 467
• Parties: MARPLE v. BURTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 79

10 N.E. 467

MARPLE v. BURTON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1887

COUNSEL

Champlin, Ryther & Wentworth, for plaintiff.

The only question presented is whether or not section 28 of chapter 162, Pub.St., requires a poor debtor, who has been arrested on execution, and who has recognized with surety, to serve his notice, as therein required, within 30 days from the day of his arrest. Millett v. Lemon, 113 Mass 360; City Nat. Bank v. Williams, 122 Mass. 534; Barnes v. Ladd, 130 Mass. 557. The construction for which the plaintiff contends makes the statute or agreement clear, intelligible, and definite in points of time and application. The surety may surrender his debtor, at any moment before the final expiration of the 30 days, and exonerate himself from further liability, or the debtor may deliver himself up for examination before some magistrate, and serve notice of the time and place of his future examination: provided that the giving of said notice to the creditor or his representatives be at a time before the expiration of the last moment of the thirtieth day. It is plainly the debtor's duty to serve the notice some time and, if it need not be served within 30 days, at what moment of time would this non-service constitute a breach of the recognizance? The plaintiff's construction of the statute renders it the more easily understood and applied, while neither its language nor application seems to justify the construction for which the defendant contends.

B Wadleigh and R.P. Clapp, for defendant.

The defendant could deliver himself up at any time within the 30 days, and the magistrate could lawfully fix the time for the examination at a reasonable time after the expiration of the 30 days. Barnes v. Ladd, 130 Mass. 557; City Nat. Bank v. Williams, 122 Mass. 534. Under the circumstances of this case, the time fixed for the examination was reasonable. The notice was served the length of time before the examination, and in the manner required by section 32, c. 162, Pub.St.

OPINION

C. ALLEN, J.

The only question in this case is whether a debtor who has been arrested on execution, and has recognized with surety, with condition that, within 30 days from the day of his arrest, he will deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof, as provided in Pub.St. c. 162, § 28, must have...