
    Ivory P. Estes vs. John S. Mitchell & another.
    A magistrate has no jurisdiction to discharge a poor debtor on Fast Day.
    Contract upon a recognizance, taken March 6th 1866, the condition of which provided that the judgment debtor, who had been arrested on an execution in favor of the plaintiff, should within thirty days deliver himself up for examination, giving notice of the time and place thereof, and duly appear, making no default, and abide the final order of the magistrate thereon.
    It was agreed in the superior court that the 5th day of April was fixed for the examination of the judgment debtor on his application to take the poor debtors’ oath, and notice was given to the plaintiff accordingly; but afterwards the 4th of April was fixed, and a new notice was given to the plaintiff. The plaintiff did not attend on the 4th of April, and the magistrate then decided not to go on under the notice for that day, but to proceed upon the first notice ; and accordingly, on the 5th of April, which was Fast Day, he discharged the judgment debtor, without an examination, upon the refusal by the plaintiff’s attorney to pay him two dollars as the fee for the examination.
    On these facts, judgment was rendered for the plaintiff, and the defendants appealed to this court.
    No counsel appeared for the defendants.
    
      B. W. Whitney, for the plaintiff.
   Gray, J.

By the Gen. Sts. c. 122, § 4, courts shall not be opened on the Lord’s Day, Thanksgiving Day, Fast Day, or certain other holidays, “ unless for the purpose of entering or continuing cases, instructing or discharging a jury, receiving a verdict, or adjourning; but this section shall not prevent the exercise of the jurisdiction of any magistrate in criminal cases to preserve the peace or arrest offenders.” In the matter of the examination of poor debtors, a magistrate has the power of adjournment, like other courts in civil actions. Gen. Sts. c. 124, § 16. Mann v. Mirick, 11 Allen, 29. And the saving of jurisdiction in criminal cases clearly implies that he can exercise no further civil jurisdiction on a legal holiday. The discharge of the debtor by the magistrate on Fast Day in the absence of the creditor was therefore unauthorized and ineffectual, and there must be Judgment for the plaintiff.  