Calnan v. Toomey

129 Mass. 451, 1880 Mass. LEXIS 273

• Court: Massachusetts Supreme Judicial Court
• Decided: September 9, 1880
• Status: Published

Opinion

Soule, J.

The notice to the plaintiffs was sufficient. The only error in it was in the statement that the person who wished to take the oath for the relief of poor debtors was arrested on execution, when, in fact, he was arrested on mesne process. This error had no tendency to mislead the plaintiffs, because Toomey had been arrested on only one process in their favor, and no other process had been issued against him in their favor. The notice showed that the application to take the oath was made by a debtor, who was correctly named, who was under arrest on civil process issued in behalf of the plaintiffs. They would not have been better informed of the facts which it was important for them to know, if the process on which the arrest was made had been correctly described, with the date and the amount of the ad damnum fully stated. Under these circumstances, we think that the notice was substantially in the form prescribed by the statute. Gen. Sts. c. 124, § 12. The error is no more serious than existed in several notices which were held good on the ground that, notwithstanding the errors, the party entitled to notice could not have been misled. Collins v. Douglass, 1 Gray, 167. Pierce v. Phillips, 101 Mass. 313. Salmon v. Nation, 109 Mass. 216. Hill v. Bartlett, 124 Mass. 399. Dana v. Carr, 124 Mass. 397.

As the plaintiffs were duly notified of the time and place of the proposed examination of Toomey on his application to take the oath for the relief of poor debtors, and failed to attend, he, being present, was entitled to a discharge, and there has been no breach of his recognizance. The judgment of the Superior Court for the plaintiffs was erroneous, and there must be, according to the terms of the agreed facts,

Judgment for the defendants.