It is now well established that the certificate of the magistrates is not conclusive, and that the regularity of the proceedings may be inquired into on the question whether the debtor has been rightly discharged by taking the poor debtors’ oath.
The ground on which a breach of the bond is claimed, is that the magistrates, in the absence of the creditor, could not proceed to examine and discharge the debtor until a reasonable time had elapsed for the appearance of the creditor, and that convenience, analogy, and usage have fixed that time at one hour from the precise time mentioned in the citation.
We are not aware that there has been a direct decision upon this subject. In Niles v. Hancock, 3 Met. 568, where the debtor failed to present himself within the hour, but arrived a few minutes after, and where the creditor had not attended, it is clearly implied, as the opinion of the court, that if the creditor had appeared to oppose, and remained till the expiration of the hour, and then departed, the magistrates could not have legally proceeded. And the judgment in that case as clearly implies that the creditor would have been bound to wait during the hour. If the debtor had an hour to appear and be examined, it was quite clear that the creditor also had an hour to appear and oppose.
The nearest analogy to the present case is that of a defendant cited to appear before a justice of the peace in a civil action. In the recent case of Blanchard v. Walker, 4 Cush. 455, it was *255decided that, as a general rule, the plaintiff has one hour, from the time named, to enter his action, and that the defendant, appearing, is not bound to wait after the expiration of the hour.
In both these cases, we think, when a party is cited to appear, and when his rights may be affected by a default, some period of time beyond the minute fixed must be allowed before he can be chargeable with contumacy or default; and in the cases above stated, the general understanding and usage has fixed this period at one hour.
The cases of jurors and witnesses summoned to attend a court, or militia men at a- parade, are not very analogous; there the nature of the duty demands punctual attendance, and therefore punctual attendance may reasonably be required.
The usage of the magistrates of a single county, as stated, in this respect, cannot, we think, affect the question, in opposition to what we understand to be the more general usage and understanding of the country, and the more reasonable rule, fixing the time at one hour. The certificate, therefore, was prematurely granted, the debtor was not legally discharged, and the plaintiffs are entitled to judgment. Judgment for the plaintiffs.