The recognizance relied upon to sustain this action is invalid, having been taken after the principal, who was under arrest on an execution, had applied to a commissioner of insolvency, desiring to take the oath for the relief of poor debtors, and to have a time fixed for immediate examination, and the commissioner had appointed such time and place for said purpose, and due notice thereof had been issued and served Upon the creditor. Pending these proceedings, and without any formal withdrawal of the application, or any notice to that effect given to the creditor, the debtor applied to another magistrate to take from him a recognizance that within thirty days from the time of his arrest he would 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 this recognizance was then taken.
This proceeding was irregular, as the debtor had already elected which of the two modes provided in the statute for his relief he would adopt. The jurisdiction had attached to the magistrate who had, at the request of the debtor, issued the notice to the creditor. The time and place appointed by him were the time and place for the examination, and both parties were to govern themselves accordingly.
The only question would seem to be, whether this defence is open to the defendant. It is urged on behalf of the plaintiff that the debtor and his surety, having entered into this obligation, cannot now ignore it. But we think the defence of a want *346of jurisdiction may be properly made in avoidance of a recognizance taken under circumstances like the present.
Judgment for the defendant.