Collins v. Hardy

Allen, J. It has heretofore been determined that, after an application of this kind has once been heard and refused, there is no jurisdiction to entertain another similar application. Henshaw v. Cotton, 127 Mass. 60. The only difference in the present case is, that upon the debtor’s first application he did not appear at the time and place fixed by adjournment for examination, and was defaulted. This is equivalent to a decision against him upon his application. Otherwise he might give successive notices and require the attendance of the creditor without attending himself. In order to discharge him upon such an application the magistrate must be satisfied that he did not when arrested intend to leave the State. Pub. Sts. o. 162, § 37. His liability to be held depends upon his intention at that time, as well as at the time of taking the oath, and there is less occasion for allowing a second notice to be given than if the oath to be taken were the poor debtor’s oath as to his property. Ho provision for a second notice to take the oath as to his intention of leaving the State is found in the statutes, though successive applications to take the poor debtor’s oath are authorized. After a default by a debtor to attend at the time and place fixed for the examination upon one application to take the oath that he does not intend to leave the State, his rights in respect to that particular oath are exhausted. See Pub. Sts. c. 162, §§ 31, 33; Henshaw v. Cotton, ubi supra. Writ of prohibition to issue.