Godfrey v. Munyan

Eítoicott, J. Oliver Pease, a trial justice of Amherst, had jurisdiction of these proceedings. They were continued from time to time before him from February 27 to April 1, when they were still further continued to May 27. On that date Pease appeared, but declined to act because he was no longer a trial justice, having removed in the mean time from Amherst to Belchertown. Gen. Sts. c. 120, § 35. This change of domicil disqualified Pease from further proceeding with the hearing. Having had jurisdiction of the proceedings, there is no provision of the statutes which authorized another magistrate to assume jurisdiction on May 27. Palmer v. Everett, 7 Allen, 358. The statutes do not make any provision for the continuance of the proceedings when a magistrate is no longer competent to act. When a magistrate fails to appear at the time and place appointed, another magistrate may continue the proceedings for a time, not exceeding thirty days. St. 1870, c. 77. But as a certificate of the continuance must be delivered to the magistrate before whom the process is pending, the statute cannot apply to this case, for Pease had ceased to be a magistrate. The only question therefore is, whether there was a breach of the recognizance on the part of the debtor, no magistrate competent to act being present on May 27. The defendants contend [243] there was not a breach, because the proceedings were brought to a close by no act or omission of the debtor, and several cases are cited to support that position. But those cases are not in point. In Palmer v. Everett, 7 Allen, 358, the magistrate was prohibited from proceeding by an injunction procured by the creditor. In the other cases, there were irregularities in the proceeding, or the magistrate exceeded his jurisdiction; but in all, the debtor appeared before a magistrate qualified to act. Doane v. Bartlett, 4 Allen, 74. Russell v. Goodrich, 8 Allen, 150. Jacot v. Wyatt, 10 Gray, 236. Stone v. Russell, 11 Gray, 226. Skinner v. Frost, 6 Allen, 285. We are of opinion that this case cannot be distinguished from Morrill v. Norton, 116 Mass. 487. In that case, the magistrate was absent from the state on the day appointed by adjournment for the hearing; in this, the magistrate had removed from Amherst, and declined to act because he was no longer a trial justice. In both cases, the act of the magistrate rendered it impossible for the debtor to perform the condition of his recognizance, by having a proper magistrate in attendance on the day appointed, qualified by law to take the examination and grant a discharge. And no distinction can be made between the neglect of the magistrate to appear and conduct the proceedings, and Ms doing an act wMch rendered it impossible for Mm to proceed. In either case, the terms of the recogmzance, wMch are absolute, are not complied with. The case was delayed to May 27 at the request of the debtor, and against the objection of the plaintiff; and the debtor was bound, at the peril of breach of Ms recognizance, to have Pease present on that day, and competent to act. He runs the risk of all such accidents, whether arising from the casual absence or the disability of the magistrate. See Thacher v. Williams, 14 Gray, 324 ; Adams v. Stone, 13 Gray, 396. As Pease was no longer a magistrate, no other magistrate could adjourn the proceedings under the St. of 1870, c. 77, for the reasons previously stated. As there was a breach of the recognizance on May 27, it is not necessary to the decision to consider the other questions raised in regard to the subsequent proceedings. But we do not intend to intimate they were regular, or that A. Perry Peck, who was jointly liable with the debtor on the original judgment [244] and execution which the plaintiff was seeking to enforce, and who had been examined as a witness before Pease on the charges of fraud, could act as a magistrate in any stage of the proceedings. Judgment for the plaintiff.