Marple v. Burton

10 N.E. 467, 144 Mass. 79, 1887 Mass. LEXIS 121

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 thirty 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 the Pub. Sts. a. 162, § 28, must have the notice served upon the creditor within the thirty days. This question, though not directly involved in Barnes v. Ladd, 130 Mass. 557, was discussed, and the court declared that the statute implied nothing more than that the debtor should present himself to the magistrate for the purpose of initiating the proceedings for his examination and discharge. It is now contended that this construction enables a magistrate to issue a notice returnable a long time after the expiration of the thirty days, which fact might not be known to the creditor till long afterwards. This is possible, if the magistrate should be willing so far to misconduct himself; but the construction of the statute is hardly to be tested by the supposition of an extreme case of this sort. The inconveniences of the construction contended for by the plaintiff are pointed out in Barnes v. Ladd, and the opinion there given has no doubt been acted on as expressing the duty of a debtor, and must now be adhered to.

Judgment affirmed.