
    Jesse B. Palmer & others vs. Henry J. Everett & others.
    If one who has been arrested on mesne process, under St. 1857, c. 141, and is before a magistrate for examination upon his application to take the oath for the relief of poor debtors, enters into a recognizance with condition to appear at an adjourned hearing, and thence from day to day, submitting himself to examination and making no default, and to abide the final order of the magistrate thereon, the recognizance is discharged by the service upon the magistrate of an injunction, procured by the creditors, prohibiting all further proceedings by him in the case.
   Merrick, J.

This action is brought upon a recognizance entered into by Henry J. Everett as principal, and by the other defendants as his sureties. The said Everett, having been arrested and being held in custody upon mesne process at the suit of the present plaintiffs, desired to take the oath for the relief of poor debtors. At his request, notice of thé time and place fixed for that purpose was issued by G. A..W. Chamberlain, a master in chancery for the county of Norfolk, and was duly served upon the creditors. At the time and place specified all the parties appeared, and the examination of the debtor concerning his estate and effects was commenced, and some progress was made in it, when it was ascertained that it would be necessary to adjourn to a future day to complete it. It was pending this examination that, in pursuance of the provisions of St. 1857, c. 141, § 10, the recognizance was accepted. The condition of it required that the said Everett should appear at the time to which the then present hearing should be adjourned, should thence from day to day submit himself to examination, should make no default, and should abide the final order of the magistrate. Upon the facts admitted by the parties, it is very clear that there has been no breach of this condition. The debtor duly appeared at the time and place of the adjournment, and submitted himself to examination. It was at this juncture that the plaintiffs caused a writ of injunction, which they had procured under an order of this court upon a bill in equity which they had commenced against said Chamberlain and Everett, to be served upon them, by the terms of which they were severally restrained and inhibited from proceeding any further in relation to the application of said Everett to take the oath for the relief of poor debtors. In obedience to this injunction the examination of the debtor was at once discontinued, and no further order relative thereto, or to the proceedings in the case, was made by the magistrate. It was a necessary consequence of this cessation of all proceedings that the debtor was left at liberty, discharged from his imprisonment. By continuing in attendance until no further order was or could be made by the magistrate in the premises, he had fully performed the condition of his recognizance, because nothing further remained which it was possible for him to do in relation to it. By procuring and causing the service of the injunction, the plaintiffs were themselves the means of terminating the action of the magistrate, and this necessarily left their debtor relieved from custody on the writ by virtue of which he had been arrested.

H. C. Hutchins, for the plaintiffs.

E. Avery, for the defendants.

It has been urged that when Mr.. Chamberlain was thus prevented from proceeding further in the examination, it devolved as a duty upon the debtor to procure the attendance of another magistrate, by whom it should 1 be continued and completed. But there is no provision to that effect in the statute, nor does it in any manner authorize another magistrate to interfere and assume jurisdiction of the legal proceedings in such a contingency. And therefore, as there was no other magistrate who had any right to come in and take upon himself the exercise of such jurisdiction, there was none to whom the debtor could apply, and thus the proceedings which he had instituted were necessarily brought to a close. It was by no action of his that this result was produced. He was only required to keep the condition of his recognizance ; and, having fully performed that, neither he nor his suretiés are responsible for the consequences resulting from the action of the plaintiffs in the enforcement of the writ of injunction which they procured. What further remedy they may have in the collection of the amount due to them it is unnecessary now to consider.

Judgment for the defendants.  