Barber v. Floyd

109 Mass. 61

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1871
• Status: Published

Opinion

Chapman, C. J.

The recognizance was valid, though it was in a sum a little more than double the amount of the execution. Currier v. Poor, 5 Allen, 585. Whittier v. Way, 6 Allen, 288.

The agreement, to postpone the hearing before the magistrate on the debtor’s examination, could not affect the surety injuriously. The condition of the recognizance was, that the debtor should deliver himself up for examination before some magistrate within thirty days, giving notice of the time and place of his examination, and appear at the time fixed for his examination, and from time to time, till the same should be concluded, and not depart without leave of the magistrate. The court ruled correctly, that the agreement was not a waiver of the obligation of the defendant Floyd to give the notice required by the terms of the recognizance, and was no defence to the action. It did not purport to waive anything more than the right to make the examination on the day specified, and postpone it for a week This the magistrate might have ordered on motion, or for his own convenience, or the parties might agree to, within the terms of the recognizance. The recognizance having been violated by the neglect to give any notice to the plaintiff, the verdict is right.

Judgment on the verdict.