The opinion of the Court was drawn up by
The question here presented is, whether the justices of the peace and of the quorum, who administered to the principal in the bond in suit, the poor debtor’s oath, had jurisdiction of the matter. If their proceedings were at the time appointed in the citation, the answer must be in the affirmative, otherwise in the negative. It does not appear that the delay which happened in this case was in any degree prejudicial to the interests of the creditor. She declined to make the selection of a justice of the peace and quorum; hence it is to be inferred, that she could have proceeded to examine the debtor, if she had wished to do so. This circumstance, however, could not give jurisdiction to the magistrates, but it is a reason for the application of the principle, that to save a forfeiture, a liberal construction should be given.. Windsor v. China, 4 Greenl. 298.
It is contended by the plaintiff’s counsel, that the next hour after that named in the citation having arrived,i without the organization of the proper tribunal, the justices had no jurisdiction whatever. Statutes must be so interpreted, that they may accomplish, and not defeat their obvious purposes. Where certain things are required to be done on a .certain day, and such is their character, that more or less time is necessary for their completion, and the whole cannot be done on that day, it will not be contended, that if done within a reasonable time afterwards, the demands of the law have not been fulfilled.
By c. 148, § 46, Rev. St. it is the privilege of the debtor and the creditor each to select a magistrate to take the examination of the former, as a poor debtor, and to administer to him the oath, if he is entitled to take it. If the parties, or either of them, decline to exercise the privilege, the duty of making the selection devolves upon the sheriff, deputy sheriff, coroner or constable. The justices must be of the quorum and disinterested. These rights of the parties are deemed
There is some difficulty in drawing with precision the line of time, after which a discontinuance would take place. Want of careful attention to meet legal provisions should not be encouraged, neither should a strictness, founded upon no good reason, or settled principle be required.
As was said by the Court in Niles v. Hancock & al. 8 Metc. 568, “ we do not think there is any inflexible rule, that every case of this kind shall be proceeded .in within the hour appointed.” Each case must stand upon the peculiar facts attending it. If the debtor should take no measures to obtain magistrates, be absent from the place appointed, till after the expiration of an hour from the time mentioned, and the creditor should have made his appearance, and waited a considerable time, and had gone away, we are not prepared to say that such negligence and delay, and perhaps loss would not operate as a discontinuance.
In this case, it being admitted, that every thing was done in strict accordance with the requirements of the law, excepting in the single particular, which has been considered, we infer that the debtor was present in time; he had requested the attendance of both magistrates, who had the proper qualifications as justices of the peace and quorum, and who acted in the matter. One was present within the hour, and the other came afterwards, when both were appointed by those legally authorized. The debtor was not regardless of his duties and his in-
Plaintiff nonsuit.