Mann v. Cook , 195 Mass. 440 ( 1907 )

Hammond, J.

We have not found it necessary to pass upon all the questions raised by the defence. The plaintiff finds himself face to face with a dilemma either horn of which is fatal to his case.

If, as is contended by the defendants, the arrest was illegal, then the recognizance is invalid (Atwood v. Wheeler, 149 Mass. 96), the invalidity was not waived by the application to take the oath for the relief of poor debtors (Smith v. Bean, 180 Mass. 298), and hence the plaintiff has no case.

If, as is contended by the plaintiff, the arrest was legal, then the recognizance was valid. When in accordance with its-terms the judgment debtor, after due notice to the judgment creditor, submitted himself to the magistrate and was discharged, he had done all the recognizance required. He had appeared and abided the final order. It is immaterial whether or not the order proceeded from an erroneous view of the law on the part of the magistrate. It was the order of a magistrate having jurisdiction of the subject matter and of the parties, and was the final order which under the terms of the recognizance the debtor was to “ abide”; and hence there has been no breach.

The remedy, if any the plaintiff has, is not by a suit upon the recognizance.

Exceptions sustained,.