
    Henry H. Gilmore vs. Frederick C. Edmunds.
    A recognizance taken under Gen. Sts. c. 124, § 17, in a sum less than double the amount of the ad damnum in the writ, and providing that the debtor named therein shall appear at the time fixed for his examination, without specifying the date, is not on these accounts invalid.
    Contract against the surety on a recognizance taken under Gen. Sts. c. 134, § 17, in the sum of three hundred dollars, with condition that Benjamin F. Edmunds, who had been arrested on a writ in favor of the plaintiff, in which the damages were laid at three hundred dollars, should at the time and place fixed for his examination deliver himself up for examination before some magistrate authorized to act, and make no default, and abide the final order of the magistrate thereon. No time or place for the examination was mentioned in the recognizance.
    A trial by jury having been waived in the superior court, Ames, J. ruled that the recognizance was void, and found for the defendant; and the plaintiff alleged exceptions.
    
      E. C. Baker, for the plaintiff.
    
      E. M. Bigelow, for the defendant.
   Merrick, J.

The reasons for which the recognizance was held by the presiding judge to be void are not stated in the bill of exceptions. It was urged at the argument in support of that ruling that the recognizance was void because it contained no statement of the time fixed for the attendance of the debtor for his examination, preparatory to his being admitted to take the oath for the relief of poor debtors, and because it was not taken ■in a sum at least double the amount of the damages demanded. But neither of these reasons will support that conclusion. It is not necessary that the time fixed for the debtor’s examination should be stated in the recognizance. That is a fact within his own knowledge, and he will conform to the duty he hag assumed, if he is present and submits himself to examination at the time fixed, whenever it may be. And the provision in the statute that the magistrate may take the recognizance in a sum not less than double the amount of the ad damnum in the writ is designed for the benefit of the creditor. If he assents to a recognizance taken in a less sum, the debtor cannot object to its sufficiency or legality on that account, the proceeding being beneficial to him and for his relief. Gen. Sts. c. 124, § 17. Thacher v. Williams, 14 Gray, 324. Whittier v. Way, 6 Allen, 291. These objections do not support the ruling of the court, and the exceptions thereto must therefore be sustained.  