This case was decided in June 1860.
Merrick, J.1. The recognizance declared on was taken in pursuance of the provisions of the act to abolish imprisonment for debt. St. 1855, c. 444. The recitals contained in it sufficiently show the reason and cause for which it was taken; and the voluntary assumption of its obligations clearly evinces that the debtor did not then desire to have any time or place fixed for his examination. Nor. was it necessary that the recognizance should state at what place or to whom the debtor should surrender himself. These were facts subsequently to be ascertained and made certain; because during the whole of the ensuing ninety days it was within the privileges conceded to him to fix the time and choose the place at which he would submit and deliver himself uo for examination. Both of these obiections were *327considered and overruled by the court in the case of Adams v. Stone, 13 Gray, 396.
2. Nor is it material that the recognizance was taken in a trifling sum less than double the amount of the execution. The fee of twenty five cents for the execution ought regularly to have been taken into the computation. Adams v. Brown, post, 579. But if the creditor accepts the recognizance notwithstanding the error, the debtor, who in no way is prejudiced by it, can have no just cause of complaint or objection on that ground. In the case of bonds given under former statutes regulating the imprisonment of persons committed to jail on execution, it was often held, that, although they varied from the requirements of the particular statute under which they were taken, they were still good at common law. Burroughs v. Lowder, 8 Mass. 373. Freeman v. Davis, 7 Mass. 200. With respect to the authority of magistrates to take a recognizance in a case like the present, it is to be observed that the language of the statute is not imperative that it shall, but that it may be in double the amount of the execution. If the penal sum of the recognizance is less than that sum, but then assented to by the debtor and not afterwards rejected on that account by the creditor, there is no reason for holding the obligation assumed to be inoperative.
3. It is not essential to a recognizance taken under this statute, that it should be returned to or recorded in any court of record. The statute contains no provision to that effect, nor is there any good reason why it should be done. Indeed, until after a breach of the condition, and until there is occasion for its production in evidence upon the trial of a suit upon it, it seems to be most proper that it should be retained in the custody of the magistrate by whom it is taken. He needs it for himself to show that he has discharged his own duty in relation to the parties ; that he has lawfully suffered the debtor to go at large, and at the same time taken the requisite security for the creditor. There is no doubt that recognizances entered into by a party appealing from a subordinate to á¡ superior tribunal, or who engages to op« pear in a particular court to answer to some suit or accusation *328against him, must be returned and recorded there. Ex parte Neal, 14 Mass. 205. Tarbell v. Gray, 4 Gray, 444. But the recognizance taken of an execution debtor under the provisions of this statute is a very different thing. It is intended, so far as it is security, solely for the benefit of the creditor; no court of record, until the commencement of a suit upon it, has anything to do with it. The recognizor is not to be called there, and no note or memorandum is to be made of his default. Indeed his default in many instances can be shown only by paroi proof.
4. But the defendants further contend that if they cannot avail themselves of any of these objections, it ought to be held, upon the facts stated in the report, that the debtor did all that was necessary to surrender and deliver himself up for examination, and that they must consequently be considered to have been discharged from the obligations imposed upon them by their recognizance. Its condition was, that the debtor should, “ within ninety days, deliver himself up for examination, giving notice to his creditors as in such case is mentioned and provided in the statute, and making no default at any time fixed for his examination, and abide the final order of the magistrate thereon.” To deliver himself up then and thus perform and keep the condition, an appointment of a time and place for his examination, as well as due notice of it to the creditor, was an indispensable preliminary. He could deliver himself up only to the magistrate by and before whom the examination was to take place; and it is his order which is finally to be respected and obeyed. It is the duty of the debtor to see that a magistrate competent to act is present at the place appointed ; and failing in this he does not and cannot keep the condition of his recog nizance. He and his sureties are therefore liable upon it, ever if he has caused a proper appointment to be made, if no com petent magistrate is there in actual attendance ;■ even if one at the request of the debtor has agreed to be there. The reason is obvious. The engagement is absolute that he will deliver himself up for examination. This engagement is accompanied by many privileges. He is allowed to select, within the ninety *329days, the time and the place when and where he will be examined, and to make his own choice of the judicial officer by whom the service shall be performed. But omission on his part to do this, or to give due notice to his creditor, renders the performance of the condition of the recognizance impossible. He therefore takes upon himself the burden of doing every necessary preliminary act; and all omissions which disable him from keeping his engagement to deliver himself up for examination in conformity to law are at the peril of himself and his sureties. Adams v. Stone, 13 Gray, 396. The debtor should take care, if he would save himself and sureties from the consequences of a breach of the condition of their recognizance, to commence acting in reference to the appointment of the time and place of his examination in such season before the lapse of the ninety days as will enable him effectually to guard against the contingency of the casual absence or other inability of the magistrate or magistrates on whose services he intended to rely, either for the purpose of giving legal notice to his creditor, or of presiding at his own examination.
The statute does not, in the 9th section, declare in terms by whom the notice to the creditor, provided for in the 5th section, shall or may be given ; but it is to be inferred from the general language of § 9, as well as deduced from the scope and purpose of the whole statute, that it may be issued by any of the magistrates enumerated in it. And the further provision is express, that if he who issues the notice does not attend, any other competent magistrate may appear and act in his place. § 5.
It follows therefore that although it appears that the debtor used considerable effort, just at the close of the ninety days, to fix a time and place for his examination, to give due notice thereof to his creditors, and there to surrender and deliver himself tip according to law, he failed to accomplish his purpose to keep the condition of his recognizance. For the breach of it he and his sureties are consequently liable.
It is no defence to show that the officer by whom the debfor was arrested had returned his execution into the clerk’s office, [t was only in part executed. If the creditor had been duly *330notified, he might have procured the attendance of the officer at the proposed time and place with the execution, under which, having begun to serve it, he could still, notwithstanding his deposit of it in the clerk’s office with a return of his doings up to that point upon it, do all acts necessary and legal to the full and complete discharge of his duty. If the oath had been refused, upon his examination, to the debtor, and such refusal had been duly indorsed upon the execution, the officer might and ought then to have conveyed him to the jail and delivered him to the custody of its keeper. Jacot v. Wyatt, 10 Gray,
Judgment for the plaintiffs.