Mount Washington Glass Works v. Allen

Endicott, J. The plaintiff contends that there was a breach of the recognizance, because the debtor did not appear before the magistrate at two o’clock on March 20, that being the time appointed by adjournment for his examination. It appears in the agreed statement that the magistrate was ill on that day, and, in consequence of his illness and before the appointed hour, the plaintiff’s counsel agreed in writing with the counsel of the debtor, that the examination should be postponed to April 3. The agreement was handed to the magistrate, and at two o’clock he continued the proceedings according to the terms of the agreement. This appears by his indorsement thereon. He was not at his office at the time, and the debtor did not appear there on that day. Upon these facts we are of opinion that the plaintiff is concluded by his own act from setting up, as a breach, the failure [285] of the debtor to appear before the magistrate at the time and place appointed. As the magistrate was unable to be present, and conduct the examination, the agreement was made, and the formality of appearing before him, as required by the terms of the recognizance, was waived. It is true, as contended by the plaintiff, that a debtor must strictly comply with the terms of his recognizance, and have a competent magistrate present at the time and place named. Thacher v. Williams, 14 Gray, 324. Even where, through no fault of the debtor, the magistrate fails to be present, because absent from the Commonwealth on the day appointed, or, being present, is no longer qualified to act, it has been held that there is a breach of the recognizance. Morrill v. Norton, 116 Mass. 487. Godfrey v. Munyan, 120 Mass. 240. But we are not aware of any case, where a creditor, having waived a provision of the recognizance, intended for his own security, has been allowed to set up that there was a breach, because the debtor failed to comply with it. On the contrary, there are numerous cases where, by reason of some act done, notice given, or agreement made by the creditor, the debtor has been excused from strict performance. Palmer v. Everett, 7 Allen, 358. Mutual Safety Ins. Co. v. Woodward, 8 Allen, 148. Lord v. Skinner, 9 Allen, 376. Pacific Ins. Co. v. Canterbury, 104 Mass. 433. In the several cases cited and relied on by the plaintiff, the agreement made by the creditor did not relate to or include the particular provision of the recognizance, for the breach of which the sureties were held liable. Merrill v. Roulstone, 14 Allen, 511. Barber v. Floyd, 109 Mass. 61. Abbott v. Tucker, 4 Allen, 72. But in this case, the agreement having been made because the magistrate could not be present and conduct the examination, the necessary result was that the debtor was excused from appearing before him, according to the terms of his recognizance. The magistrate indorsed the adjournment on the agreement at the appointed hour, and, for the reasons previously stated, it is immaterial that he was not at the place appointed at the time. His action was not void, and he continued to have jurisdiction of the pro feedings. Judgment for the defendant affirmed.