Chesley v. Welch

We are at a loss to conceive of any good cause of- complaint in this case, on account of one notice merely having been given that the debtor proposed to swear out on two several executions, specifying them, on which he had been committed by the same creditor. It is in fact two no*253tices embodied in one paper. It gives, clearly and distinctly, to the creditor, all the information which the statute requires to be given in each case. It gives it in a form perfectly convenient, and with regard to which there could be no mistake ; and the form adopted precludes the creditor from no hearing or defence which would have been open to him had two several notices been served. The creditor is, therefore, entirely unprejudiced by this course, and the whole legal requirement of the statute is complied with.

Another exception taken is, that on the day appointed for the hearing but one magistrate attended, and he adjourned the hearing, making a record that the other magistrate was necessarily absent; and it is contended that the magistrate present had no authority to determine whether such absence was necessary or not.

Both magistrates issued the notice and appointed the day of hearing ; and if both did not attend, it was the duty of the magistrate present to adjourn, provided any cause for adjournment existed within the provisions of the statute ; and if so, his record should show the existence of such cause. He has here certified as to the existence of such cause, and the record is the proper evidence of this fact. The magistrate, therefore, has done only what his duty required him to do, and the record is properly made up, showing a legal adjournment.

Another exception is, that the return of the justices does not show the particular oath administered to the debtor, but merely that he took the oath prescribed by statute. The statute does not require the magistrates to recite the oath in their return ; and though this would be the better form of a return, we do not incline, in a suit upon this act, to go beyond the literal requirement of the statute. The return is in the precise words of the law, that “the debtor took the oath prescribed by the statute and we think it safe enough to infer that the return is correct, without requiring evidence, embodied within it to enable us to judge of that fact. *254There is sufficient evidence from the return that the proper oath was taken.

The exceptions, therefore, are overruled, and there must be Judgment for the defendant.