O'Connell v. Hovey

Soule, J. The plaintiff’s declaration shows that all the pro ceedings after the recognizance was taken, and the notice oi Hovey’s intention to take the oath was given, were had with the knowledge and consent of the plaintiff, down to and including the adjournment of the proceedings to the day when the oath was administered. If a strict compliance with the statute required, as the plaintiff contends, that Hovey should at once plead to the charges of fraud filed, his failure to do so cannot be availed of by the plaintiff, because he alleges that the several continuances were made before Hovey pleaded, with his consent. On the day when the oath was administered the case stood thus: The plaintiff had examined the debtor so far as he saw fit to, and had filed charges of fraud which he had permitted to lie without plea for three years and more. At the time and place to which the hearing was adjourned, the debtor appeared, but the plaintiff did not. This was an abandonment of his charges, and of all opposition to the discharge of the debtor. The allegations of the declaration as to the promises of the debtor to pay the execution do not change the legal aspect of the case. And nothing is alleged which indicates any reason why the magistrate should not have decided that the plaintiff was in default. Nor is it alleged that the debtor said or did anything which was designed to induce or did induce the plaintiff to absent himself from the hearing. The material allegations of the declaration fail to set out any breach of the recognizance. If it would have been more regular for the magistrate to require a plea to the charges of fraud, and to make a finding upon them, before administering the oath, the irregularity was one for which the debtor was not responsible. Willis v. Howard, 7 Allen, 266. Judgment affirmed-