Simpson v. Trivett

Devens, J. By the conditions of his recognizance the debtor was bound to deliver himself up for examination within the time therein specified. According to the facts as, under the instructions of the court, they must have been found by the jury, he has not done this, unless his appearance before the magistrate without offering to submit to an examination but objecting thereto constitutes such a delivery. An appearance before a magistrate for the purpose of objecting to an examination is not, however, a delivery of himself up for an examination. Nor is it an answer that the magistrate made no peremptory order that the debtor should be sworn, submit to the examination and reply to the interrogatories. There was no unwillingness nor refusal by the magistrate to go on, in which case it might have been contended that the proceeding had failed by reason of hi* 153 fault. But when it was for the debtor to submit himself to examination, if he would perform the condition of his recognizance,, there was no duty incumbent on the magistrate to order him so to do. He was not examined, simply because he declined to be examined. The fact that the execution was not before the magistrate at the time the interrogatories were proposed was unimportant. In case the creditor desired to arrest the debtor, if the oath should be refused him, it was only necessary that he should have the execution there in time for the magistrate to indorse his certificate of refusal thereon. Gen. Sts. c. 124, § 26. Fuller v. Meehan, 118 Mass. 135. The cases cited by the defendants, which hold that under the United States Bankrupt Act, (U. S. St. of 1867, c. 176,) a bankrupt, by declining to submit to an examination, previously to a decision upon the question whether he is legally bound so to do, is not in contempt, do not affect the present question. The examination which the debtor was to undergo was a voluntary one, after a notice issued at his own request and served upon the plaintiff. He could not interpose objections and yet claim that he had submitted to it. Exceptions overruled.