Fuller v. Meehan

118 Mass. 135, 1875 Mass. LEXIS 324

• Court: Massachusetts Supreme Judicial Court
• Decided: June 26, 1875
• Status: Published

Opinion

Devens, J.

It has heretofore been decided that if one who-has been examined before a magistrate, for the purpose of taking the poor debtor’s oath, departs after the magistrate has announced his decision not to administer it, but before he has made the certificate thereof, which it is his duty to annex to the execution, there is a breach of the recognizance. Gen. Sts. c. 124, § 26. Peck v. Emery, 1 Allen, 463. Lothrop v. Bailey, 14 Allen, 514. Knight v. Sampson, 99 Mass. 36. It is contended that this case may be distinguished from those cited, because neither the execution nor the officer was present until ten minutes after the completion of the certificate. But the breach was complete when the debtor departed from the presence of the magistrate without leave, while he was proceeding with his duty in writing out his certificate, and rendered any subsequent proceedings on the part of the plaintiff unnecessary.

Neither the presence of the execution nor that of the officer was important until the magistrate was prepared by the completion of his certificate to annex it to the execution, and thus empower the officer to take the person of the debtor into custody.

The fact that the officer with the execution did not arrive until ten minutes after the completion of the certificate could not cover the breach already committed by the debtor in failing to abide the final order of the magistrate.

The present case differs from that of doodall v. Myriek, 111 Mass. 484, where the debtor, after waiting until the magistrate had completed his certificate, departed, there being no execution nor officer then present, and it was held that in so doing he had committed no breach of the recognizance.

Judgment for the plaintiff.