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Joseph B. Sanford v. John Quinn
C. Allen, J. The ruling of the court, to which exception was taken, was that the magistrate had no authority on the first day of June (that being the day before the day to which the case had been adjourned) to continue the case until the ninth day of June. No question was raised at the trial as to the construction of the magistrate’s record, and no request was made to have it written out in full.
The question before us must therefore now be considered as if the record showed an adjournment of the ease to June 2d, and an order of the magistrate passed on June 1st for an adjournment from June 2d to June 9th, he not being present at all on June 2d. No injustice will be done to the parties by this assumption, since the counsel on both sides have argued the case on this basis only.
No decision has been pointed out to us, and we know of none, which in any way recognizes the doctrine that such a magistrate has jurisdiction to act except at fixed times. He may adjourn the case from time to time, and, if he fails to attend at the time and place fixed, any other competent magistrate may attend and continue the proceedings. Pub. Sts. c. 162, §§ 35, 67. Similar provisions exist respecting trial justices. Pub. Sts. c. 155, §§ 20, 21.
But there are no statutory provisions respecting such magistrates analogous to that which now enacts that the Supreme Judicial Court and. the Superior Court shall be always open in every county, and there shall no longer be any terms thereof. St. 1885, c. 384, § 2. The jurisdiction of the magistrate depended on his attendance at the time and place fixed, and he had no authority on the day before to pass any order in the case.
There are numerous decisions which show that it is the duty of the debtor, at all hazards, to have a competent magistrate present at the time and place appointed for his examination. Vinal v. Tuttle, 144 Mass. 14, and cases cited. He failed to do so. There was no waiver on the part of the plaintiff. The result is that there was a breach of the recognizance. Rxeejptions overruled.