Hills v. Jones

Lord, J. It has been settled by a series of decisions, too numerous to be now questioned, that when a party gives notice of the intention to take the poor debtor’s oath, one hour from the time fixed in the notice is allowed for debtor, creditor and magistrate to appear, and neither is in default till the expiration of a full hour. Niles v. Hancock, 3 Met. 568. Hobbs v. Fogg, 6 Gray, 251. Adams v. Stone, 13 Gray, 396. Thacher v. Williams, 14 Gray, 324. It is not therefore an open question in this Commonwealth. In Niles v. Hancock, the debtor did not appear till some ten minutes after the expiration of the hour, but the magistrates had been in attendance during the whole of the hour, and there had been no appearance of the creditor, and the court is careful to put its decision upon that ground, and to [414] limit it to the facts of that particular case, and to affirm the received opinion that an hour is the limit of right. In this case, there was an appearance at the time fixed; and an adjournment was ordered by the magistrate to another day, to wit, to November 20, 1875, at one o’clock. The magistrate however failed to appear within the hour, though both debtor and creditor appeared and waited till ten minutes past two o’clock, when the magistrate appeared; but the creditor objected to his jurisdiction upon the ground that the time had expired within which he had the right to act. Nor is this an open question. In Phelps v. Davis, 6 Allen, 287, and in Sweetser v. Eaton, 14 Allen, 157, the precise question arose as in this case, and, in both those cases, it was held that the same limitation of time applied to the adjournment of a proceeding already commenced, as to the time originally fixed. It is of the highest importance, in a matter of this kind, that the time at which all parties shall be bound to be represented be definite and certain; and, until the Legislature shall see fit to enact otherwise, one hour must be deemed to be that limit. Whatever the limit may be, a neglect to appear until ten minutes after its expiration would be just as unfortunate as in this case. See Godfrey v. Munyan, 120 Mass. 240, and cases there cited. Judgment affirmed.