First National Bank of Ithaca v. Gogin , 148 Mass. 448 ( 1889 )

By the Court.

The obligation assumed by the defendant in the recognizance was that the debtor should within thirty days from the day of his arrest deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof, and appear at the time and place fixed for his examination, and abide the final order of the magistrate. The time and place of the examination is to be appointed by the magistrate, and not fixed by the debtor. If the arrest is on an execution, the statute fixes no time within which the examination shall be commenced. It is left to the discretion of the magistrate to fix the time for the examination, the only limitation being that it must be so far ahead as to enable the notice to be given to the creditor which is required by the statute.

In the case at bar, the debtor did all that the recognizance required of him, and there has been no breach of it. If the magistrate erred in judgment in fixing so remote a day for the examination, it was not the fault of the debtor, in the absence of any proof of collusion-, and the surety ought not to be held responsible. The debtor has delivered himself up within thirty days, and has obeyed all the orders of the magistrate whose jurisdiction then attached, which is all that the surety undertook that he should do. Barnes v. Ladd, 130 Mass. 557.

Judgment for the defendant.