
    Charles Currier vs. David S. Poor & another.
    A recognizance under Gen. Sts. c. 124, § 10, taken in more than double the amount of the execution, is not on that account invalid.
    Contract on a recognizance taken under Gen Sts. c. 124, § 10, “ of arrest, imprisonment and discharge,” with condition, that the defendant Poor, 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, giving notice as therein provided, and making no default, and abide the final order of the magistrate thereon. At the trial in the superior court, before Ames, J., it appeared that the recognizance was taken in a sum eighty cents more than double the amount of the execution ; and the defendants contended that it was there, fore void. But the judge ruled otherwise, and, the other necessary facts having been proved, a verdict was returned for the plaintiff. The defendants alleged exceptions.
    
      S. B. Ives, Jr., for the defendants.
    
      J. W. Perry, for the plaintiff.
   Merrick, J.

It is urged in support of the exceptions, and as an insuperable objection to the maintenance of this action, that the recognizance declared on is void, because it was taken in a sum more than double the amount of the execution upon which Poor, one of the defendants, was arrested. This excess, though very inconsiderable in amount, would undoubtedly be -sufficient to invalidate the recognizance, if in taking it the magistrate exceeded his authority and imposed upon the debtor an obligation which he could not lawfully have been required to assume. In the case of Adams v. Brown, 14 Gray, 579, the recognizance was held to be invalid because the penal sum was' excessive, by including therein, in addition to a sum double the amount of the execution, the interest accruing on the judgment. But that was taken under the provisions of St. 1855, c. 444, § 9, which authorized the magistrate to take a recognizance only in a sum double the amount of the execution. He could therefore legally act only within the prescribed limitation. But the statute under which the recognizance declared on in this case was taken provides that a recognizance may be taken in a sum not less than double the amount of the execution. Gen. Sts. c. 124, § 10. This is a very material alteration of the law. A discretion as to the sum in which the debtor may be required to recognize is now, under the language used in the statute, given to the magistrate; provided only, that it shall not be less than double the amount of the execution. The recognizance may be taken in that or in a greater sum, as the magistrate shall order. In either of these cases it will be valid, and create an effectual obligation against the principal and surety who become parties to it. The objection of the defendants therefore cannot be sustained. Exceptions overruled.  