Driscoll v. Hurlburt

Allen, J. It is plain that the recognizance was broken unless its provisions were waived by the plaintiff. Mount Washington Grlass Works v. Allen, 121 Mass. 283. The defendants contend that it was waived by the agreement for a continuance. No copy of the agreement is before us, but by the true construction of its terms, as set forth in the amended answer of the defendants, it was the debtor’s duty to see to it that a proper order of continuance was duly entered by the court. This the debtor failed to do, and as a consequence the proceedings were dismissed. The defendants contend that, in undertaking to file the agreement with the court, the debtor’s counsel was acting for the plaintiff as well as for the debtor, and that his neglect was therefore the neglect of the plaintiff. But the general duty of keeping alive the proceedings in court rested upon the debtor; and no part of this duty was assumed by the plaintiff under the agreement. The judgment for the plaintiff was therefore right. Judgment affirmed.