
    City National Bank of Manchester vs. Benjamin B. Williams & another.
    Suffolk.
    March 9.
    May 5, 1877.
    Endicott & Soule, JJ., absent.
    A surety on a poor debtor’s recognizance, entered into under the Gen. Sts. c. 124, § 10, surrendered Ms principal, who had not delivered himself up for examination, on the tMrtieth day from his arrest, when there was not time to give the notice required by statute within the thirty days named in the recognizance. Held, that there was no breach of the recognizance.
    Contract on a recognizance entered into under the Gen. Sts. c. 124, § 10, on July 8, 1875, by the defendant Williams as principal, and the other defendant as surety, and conditioned that Williams, who had been arrested on an execution in favor of the plaintiff, should, within thirty days from the time of his arrest, deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof in the manner provided by law, and appear at the time fixed for his examination, and from time to time until the same was concluded, and not depart without leave of the magistrate, making no default at any time fixed for his examination, and abide the final order of the magistrate thereon.
    The case was submitted to the Superior Court, and, after judgment for the defendants, to this court, on appeal, on an agreed statement of facts in substance as follows:
    On August 2, 1875, at half past six in the afternoon, the defendant Williams not having delivered himself up for examination as provided in the recognizance, the surety surrendered him to the keeper of the jail in the county where he was arrested. No question is made upon the validity and sufficiency of the surrender, if it was seasonable in time ; and it is admitted that, under the circumstances which existed in this case, there was not time, when the surrender was made, to give the notice required by the statute within the thirty days named in the recognizance.
    
      W. H. Towne, for the plaintiff.
    
      H. G. Parker, for the defendants.
   Lord, J.

The fallacy of the plaintiff’s position is in the assumption that the recognizance of the defendants- is an engagement that the debtor shall be examined within thirty days of the day of his arrest, having previously given due notice of his intention to submit himself to examination. But this is not the contract. The contract is that “ he will deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof as herein provided.” Gen. Sts. c. 124, § 10. There is nothing in the statute to indicate that these acts may not be contemporaneous. The present participle rather implies that the notice is to be given, or at least may be given, at the time the party delivers himself up for examination, while the remaining language, immediately following that quoted, “ and appear at the time fixed for his examination,” is strongly corroborative of the view. Section 45 of same chapter proyides: “ Whoever recognizes as surety for another, as provided in this chapter, may, at any time before breach of recognizance, surrender his principal and exonerate himself from all further liability, in the manner provided for the surrender by bail.”

In this case, the party was surrendered before the expiration of thirty days from the day of his arrest. There could have been then no breach of the recognizance. A right of action arises immediately upon a breach; but on this recognizance there could be no right of action till after thirty days, for the party has the whole of thirty days in which to deliver himself up for examination. Judgment affirmed.  