It is the duty of one who desires to take th.e oath for the relief of poor debtors to have a competent magistrate present at the time and place appointed for his examination. Even where through no act or omission of the debtor the magistrate fails to be present, or for any reason is no longer qualified to act, his recognizance is broken. Thacher v. Williams, 14 Gray, 324. Morrill v. Norton, 116 Mass. 487. Godfrey v. Munyan, 120 Mass. 240. Mount Washington Glass Works v. Allen, 121 Mass. 283.
Provision is made that when the magistrate is absent another magistrate may continue the proceedings for a time not exceeding thirty days, making a certificate thereof, to be delivered to the magistrate before whom the proceedings are pending; but asEly had ceased to be a magistrate, this provision does not here apply, and the proceeding initiated by the debtor came to an end by this disability. Pub. Sts. 162, § 67. No provision is made for the conclusion of proceedings before a trial justice after he has ceased to hold that office.
It is competent for the creditor to waive provisions in the recognizance made for his own security, and the debtor has heretofore been held excused from strict performance of them by .reason of acts done or agreements made by the creditor. Mount Washington Glass Works v. Allen, ubi supra, and cases cited.
The defendant does not and cannot rely upon the proceedings before Wentworth as discharging him from the recognizance, but contends that the conduct of the plaintiff, through his attorney, waived all the formalities of Clisby’s appearance before Ely, and that the plaintiff cannot set up, as a breach, that Clisby did *17not appear at the time and place fixed before a magistrate competent to act.
The facts found show that Ely, who had tendered his resignation, proposed to withhold the same, in accordance with the suggestion of the Governor of the Commonwealth, until he could dispose of all matters pending before him; that he inquired of the attorney of the plaintiff creditor whether he intended to pursue this matter further; that he understood, and had a right to understand, that it was not to be prosecuted further; and was told that its pendency need not stand in the way of his resignation.
These facts fairly establish a waiter by the plaintiff of his right to hold the defendant to the strict terms of the recognizance. The statement, made by the plaintiff's attorney was within the scope of his authority, and one upon which the magistrate had a right to proceed in determining what his duty was in regard to cases pending before him, in connection with his intended resignation. There has been no omission on the part of the debtor; and the disqualification of the magistrate by resignation, by which the debtor might have been affected injuriously if it had occurred independently of the conduct of the plaintiff, has occurred by reason of that conduct. The plaintiff cannot be allowed to insist that the debtor has failed to appear at the time and place named before a competent magistrate, and has thus broken his recognizance, when he has induced the magistrate, who proposed to withhold his resignation “if necessary to protect parties,” to persist in resigning. It was by his own act that the proceedings were brought prematurely to a close. In Palmer v. Everett, 7 Allen, 358, it was held that, where the plaintiff obtained an injunction against a magistrate forbidding him to act, he had himself terminated the proceedings; that there was nothing further that it was possible for the debtor to do; and thus that he must be deemed to have performed the condition of his recognizance. In principle that case is decisive of the one at bar.
Exceptions sustained.