Cook v. Thayer

Ames, J. It appears that while the debtor and creditor were in the presence of the magistrate, and before the expiration of the appointed hour, a question arose whether the debtor, having already taken the oath before the creditor appeared, was thereafter bound to submit to examination. Instead of submitting to be examined, the debtor obtained leave from the magistrate to see his counsel, for the purpose of being instructed as to his rights and duties in the matter. We have decided that the effect of this permission was to extend the hour for a reasonable length 337 of time, for that purpose, and that if the debtor returned, for the* purpose of submitting to the examination, within such reasonable time, even though the original hour had expired, it would not of itself be a breach of the recognizance. Cook v. Thayer, 121 Mass. 415. But it is to be remembered that submission to examination, if the creditor wishes to examine, is indispensable to the debtor’s discharge. Millett v. Lemon, 113 Mass. 355. Simpson v. Trivett, 120 Mass. 147. He had left the magistrate’s office, refusing to be examined, or at least leaving it wholly uncertain whether he would be examined or not. His return to the office was not necessarily a submission to examination. We cannot know that he did not return, with the intention of relying upon the oath which he had already taken, in case the creditor should be absent. The failure of the creditor to be in attendance was not conclusive proof of an abandonment of his right to examine, inasmuch as there was evidence tending to show that he had made arrangements to be informed if the debtor should conclude to undergo examination, and there was no evidence that he had been so informed. Under such circumstances, the case is distinguishable from Phelps v. Davis, 6 Allen, 287; and it was clearly the duty of the debtor to make his conclusion known. Until he did so, all that the magistrate could know was that the debtor had once refused, and had not made known a change of mind. Under the instructions given, the jury must have found that the debtor did not make known to the magistrate, by word or act, that he had returned for the purpose of being examined, and that neither the plaintiff nor his counsel knew that he had so returned, or waived the examination. There was nothing in this instruction open to exception. On the contrary, it was carefully guarded, and fully covered the rights of the defendants. JSTor do we find any error in the ruling excluding evidence of the advice given to the debtor by his counsel. It was enough that he was permitted to show that it was in consequence of that advice that he returned. Exceptions overruled.