Lynde v. Richardson

Massachusetts Supreme Judicial Court

Lynde v. Richardson

124 Mass. 557, 1878 Mass. LEXIS 374

CourtMassachusetts Supreme Judicial Court

DecidedJune 28, 1878

StatusPublished

Cited by1 cases

This text of 124 Mass. 557 (Lynde v. Richardson) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lynde v. Richardson, 124 Mass. 557, 1878 Mass. LEXIS 374 (Mass. 1878).

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Opinion

Soule, J.

The ruling, that the room, in which the oath was administered, was not the place appointed for examination of the debtor, was in favor of the plaintiffs and was not excepted to. The question of its correctness, therefore, is not raised for our consideration. But, assuming the ruling to have been right, it was competent for the defendants to show that the proceedings were had in the office of the clerk by consent of the plaintiffs, either express or implied. The purpose of naming the place of examination in the notice is to inform the creditor where he is to go, in order that he may have an opportunity to put such questions as he chooses to the debtor. The plaintiffs had that opportunity; and if, when the parties and the magistrate met in the clerk’s office, near the court room and in the same building, ■and the magistrate administered the preliminary oath, by taking which the debtor offered himself for examination, Mr. Lynde remained during, and till the expiration of, the hour from the time fixed for the examination, without indicating any objection to the proceedings which he saw in progress, a jury would be warranted in finding that he consented to the change of place, and waived the right to have the examination in the court room. If, on the other hand, he intended to take advantage of the fact that the oath was not administered in the place appointed, and sat by without objecting, and with the purpose of having the magistrate and the debtor believe that he waived his rights in this particular, and left just before the hour expired, and too late for the parties to proceed in the court room, this would be a waiver, and he would be estopped, by his conduct, to contend that the oath was not properly administered. It would be unjust to allow him to benefit by actions so disingenuous. Grant v. Clapp, 106 Mass. 453.

[560]*560The evidence, as stated in the bill of exceptions, would warrant the jury in finding a waiver on either of these grounds, and as it was submitted to them, under instructions not objected to, we see no reason for disturbing the verdict.

Exceptions overruled.

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Soule, J.

The ruling, that the room, in which the oath was administered, was not the place appointed for examination of the debtor, was in favor of the plaintiffs and was not excepted to. The question of its correctness, therefore, is not raised for our consideration. But, assuming the ruling to have been right, it was competent for the defendants to show that the proceedings were had in the office of the clerk by consent of the plaintiffs, either express or implied. The purpose of naming the place of examination in the notice is to inform the creditor where he is to go, in order that he may have an opportunity to put such questions as he chooses to the debtor. The plaintiffs had that opportunity; and if, when the parties and the magistrate met in the clerk’s office, near the court room and in the same building, ■and the magistrate administered the preliminary oath, by taking which the debtor offered himself for examination, Mr. Lynde remained during, and till the expiration of, the hour from the time fixed for the examination, without indicating any objection to the proceedings which he saw in progress, a jury would be warranted in finding that he consented to the change of place, and waived the right to have the examination in the court room. If, on the other hand, he intended to take advantage of the fact that the oath was not administered in the place appointed, and sat by without objecting, and with the purpose of having the magistrate and the debtor believe that he waived his rights in this particular, and left just before the hour expired, and too late for the parties to proceed in the court room, this would be a waiver, and he would be estopped, by his conduct, to contend that the oath was not properly administered. It would be unjust to allow him to benefit by actions so disingenuous. Grant v. Clapp, 106 Mass. 453.

[560]*560The evidence, as stated in the bill of exceptions, would warrant the jury in finding a waiver on either of these grounds, and as it was submitted to them, under instructions not objected to, we see no reason for disturbing the verdict.

Exceptions overruled.

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Bluebook (online)

124 Mass. 557, 1878 Mass. LEXIS 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynde-v-richardson-mass-1878.

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