Coleman v. Hawkes , 120 Mass. 594 ( 1876 )

Lobe, J.

The legal effect of the magistrate’s record, unaided by the paroi testimony objected to, is the same without as with the evidence; its competency is therefore immaterial. By that record, without examination and without the payment of any fees, the debtor was entitled to be discharged from arrest and imprisonment. Gen. Sts. c. 124, § 48. The St. of 1866, c. 193, changes the amount of fees of the magistrate, but does not in terms make any change in respect to the person by whom they are to be paid. If by implication the fee of one dollar is to be paid by the debtor, which we do not mean to intimate, the payment of such fee is not a condition precedent to his right to discharge. It is not necessary to consider what would be the effect, if any, of the absence of the magistrate’s certificate in any subsequent proceedings upon the execution. So far as the debtor entered into any contract with the creditor, he has fully performed it; and the magistrate could not, by refusal to make a certificate, deprive him of rights which by law had already become fixed. Judgment for the defendants.