Sweeney v. Gillooly

103 Mass. 549

Opinion

Colt, J.

The defendant’s discharge, granted upon a delivery of himself for examination within thirty days from the day of his arrest, and upon notice to the creditor, with no default or failure to abide the order of the court, on the proceedings then commenced and carried to their regular termination, as required by Gen. Sts. c. 124, is a good defence to this action. There was a strict compliance with the terms of the recognizance. And the effect of the proceedings is not impaired by the fact that he had made a prior application to another magistrate, and failed to appear for examination at the time fixed by him. His default upon this first application may have been occasioned by accident or mistake, or by circumstances which, without actúa, fault on his part, made it impossible for him to attend.

The default under the first application would have given the plaintiff his action upon the recognizance, if no other proceedings had been had within the thirty days. But it was rendered of no account by his discharge under the subsequent notice. This construction is sustained by § 14, which gives an unrestricted right to a new application and notice at the expiration of seven days from the service of the former notice, without reference to the causes which produced failure in the former proceedings. Skinner v. Frost, 6 Allen, 285. Sweetser v. Eaton, 14 Allen, 157. Judgment for the defendant.