The burden was on the plaintiff to prove a breach of the recognizance declared on. Blake v. Mahan, 2 Allen, 75. But the evidence failed to make out even a prima facie case. It did not appear that the execution debtor committed a breach of the condition by omitting to appear at 9 a. m. of the day to which the examination was adjourned. On the contrary, the court expressly found that this fact was not proved, and the case shows that there was evidence tending to prove that the debtor did in fact appear after nine and before ten o’clock on that day. Then the only evidence on which the plaintiff could rely to prove a breach was, that the debtor was not present before the magistrate precisely at the expiration of the hour of nine. But this falls short of adequate proof to charge the defendant, because it does not appear that the debtor was bound to be there at that precise moment. The case would have presented a very different question if it had appeared that the debtor had failed to appear at all until after the hour had expired. But that not being shown, it does not follow that the debtor was in default because he was absent at a subsequent time. For aught that appeared in evidence, the debtor may have been previously present. If so, the magistrate had acquired jurisdiction of the case; it was within the scope of his authority to continue the proceedings during the hour and after its expiration ; he .did not lose the right to take cognizance of the case by the temporary absence of the debtor; it was competent for the magistrate to suspend the proceedings for a brief period and to resume them again; and by doing so on the return of the debtor, he by implication gave a sanction to his absence, as being for a legitimate purpose. On this state of facts, it cannot be said that the debtor departed without leave, or that the magistrate had ceased to hold *398jurisdiction of the case so that he could not discharge the debtor on his oath. See Niles v. Hancock, 3 Met. 568.
Exceptions overruled.