
    Lyman Underwood & another vs. William T. Clements, Administrator.
    A recognizance, taken by the justice of a police court from a debtor arrested on execution and carried before him pursuant to St. 1857, c. 141, the condition of which requires the debtor to surrender himself for examination in court, instead of before the justice, is void.
    Action of contract on a recognizance taken by a justice of the police court of the city of Worcester from a debtor arrested on execution and carried before him pursuant to the provisions of St. 1857, c. 141, by the condition of which the debtor was required to surrender himself “ for examination before said police court within ninety days, for the purpose of taking the oath for the relief of poor debtors.” Demurrer, because the justice had no authority to require the debtor to surrender himself in court. The superior court sustained the demurrer, and the plaintiff appealed.
    
      C. Devens, Jr., for the defendant.
    
      W. A. Williams, for the plaintiff
   Chapman, J.

By the statute referred to in the condition of the recognizance, a debtor may be arrested at any time, and when arrested he shall be carried before some one of the magistrates named in the fourth section, at any place where the magistrate can be conveniently found, and without any further delay than to give him a reasonable opportunity to obtain sureties. The examination is not to be a proceeding in court; for in many cases the magistrate has no authority to hold courts except in places and at times established by law, with long vacations between the terms. But the examination is to be made without waiting for the session of the court., and in any convenient place which the magistrate may select. If the debtor gives a recognizance under the tenth section that he will deliver himself up for examination within ninety days, it should be to deliver himself up to the magistrate, without being restricted to appear in court. In this recognizance the magistrate, having required that the debtor should surrender himself before the police court, has exceeded his jurisdiction, and the recognizance is void.

Judgment for the defendant  