Lothrop v. Bailey , 96 Mass. 514 ( 1867 )

Wells, J.

By virtue of his recognizance the debtor remains free from the custody or interference of the officer, until the proceedings upon his examination are concluded. If the creditor neglect to have the officer at hand, when that exemption ceases, to take him into custody and commit him, the debtor is under no obligation to seek out the officer, nor to remain for any definite or indefinite time for him to appear. The place of examination is the place where he is entitled to “ abide the final order of the magistrate,” and deliver himself up; and if he is unable to do it, by reason of the neglect of the creditor or the officer, he will be discharged from the recognizance. Jacot v Wyatt, 10 Gray, 236. But the officer cannot act until he is warranted in so doing by the indorsement of the certificate of the magistrate upon the execution. Gen. Sts. c. 124, § 26. If therefore the execution is in the hands of the magistrate, and immediately upon his determining to refuse the oath he is proceeding to make the certificate thereof upon the execution, the examination is not so “ concluded ” as to give the debtor a right to “ depart without leave of the magistrate ; ” and if the officer is at hand to take the debtor into custody and commit him, as soon as his authority to do so is complete, there is no neglect nor omission on his part nor on the part of the creditor which will excuse the debtor for his failure to abide this final order His departure before the magistrate had completed the certificate, in this case, was premature; and was a breach of his recognizance. Upon the agreed facts therefore the plaintiff is entitled to recover.