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David B. Morrill v. John Norton
Devens, J. It was entirely competent for the District Court wherein this cause was pending to permit an amendment of the certificate of the recognizance, as originally returned by the magistrate to that court, to be made by filing a new and corrected memorandum thereof, and also to permit the declaration in the action to be amended to correspond with the recognizance as thus corrected. Cook v. Berth, 108 Mass. 73. Commonwealth v. Cheney, Ib. 33.
The recognizance sued on was for the appearance of the principal debtor upon a day and at a place named, and from time to time until his examination was concluded. On the 30th of January, 1873, to which time the examination had been adjourned, the magistrate failed to attend ; and although any magistrate named in the Gen.
Sts. c. 124, § 1, could have attended and adjourned the proceeding, making certificate thereof, (St. 1870, c. 77,) no such magistrate was called in, no adjournment took place, and the proceedings have since slumbered. By permitting the examination thus to fall through, and taking no further action, it must be deemed that a breach of the recognizance has been incurred.
The burden of doing the necessary preliminary acts, such as providing for the presence of a competent magistrate, is upon the debtor, and all omissions which disable him from keeping his engagement to deliver himself up for examination in conformity with his recognizance, are at the peril of himself and his sureties. Thacher v. Williams, 14 Gray, 324. Adams v. Stone, 13 Gray, 396.
Millett v. Lemon, 113 Mass. Nor were the statements made by the deputy sheriff admissible either to relieve the debtor from a breach of the recognizance, or to prove that there had been any adjournment of the examination by the magistrate. This officer was in no way, so far as appears, authorized to act or speak for either the plaintiff or his attorney, and his own duty as deputy sheriff was for the time at an end, the debtor having by the recognizance been discharged from his custody. Judgment for the plaintiff.