The opinion
Shaw, C. J.
The court are of opinion that the discharge of Lakeman was good. The examination was rightfully com menced before two justices, both of the quorum, and wras regularly adjourned, pursuant to their powers. On the day to which the proceedings stood adjourned, one of those who acted on the first occasion attended ; but the other being necessarily ab sent, his place was supplied by another justice of the quorum, selected by the debtor. By the Rev. Sts. c. 98, § 4, the authority to take the examination and give a certificate of dis charge to the debtor is vested in two justices, each to be of the quorum, disinterested, and not related to either party. The selection is to be made by the debtor, because no other mode is directed by law, and no other party has any interest to do it; and this selection may be made before or on the return day of the notice. If an adjournment takes place, before the examination, and at the adjournment one of the magistrates is prevented, by necessary absence, from attending, we are of opinion that it is within the spirit, and not contrary to any provision of the statute, for the debtor to elect another magistrate otherwise qualified, to take his place ; the one who remains having the custody of the records and proceedings of the first meeting. The creditor acquires no right to have the jurisdiction confined to the two justices, before whom the proceedings commenced; because it is very clear, that it would be in the power of the debtor to waive the first notice, issue a new notice, and on its return to select two new magistrates, or one of the former and one new one. What would be the case, should both magistrates, after adjournment, be necessarily absent; whether the minutes, files and records of the former proceedings, could or could not be produced ; we give no opinion.
Judgment for the defendants-