Grant v. Clapp

106 Mass. 453

Opinion

Chapman, C. J.

The first error in these proceedings was made by the plaintiffs’ attorney. One of these plaintiffs was named Edwin Grant, and was called Edward both in the writ and the execution. This led the magistrate to issue the notice for taking the poor debtor’s oath to “ Edward Grant,” and the officer returned that he had served it upon Edward. He had in fact served it upon Edwin. When the plaintiffs’ attorney was informed of the facts, he went to the magistrate and misled him still further by telling him that he did not appear for any Edwin Grant. This was disingenuous, to say the least; for he knew' that his client’s true name was Edwin. It would not be consistent with fair dealing to allow the plaintiffs to contend that the new notice issued by the magistrate was void on the ground that the first notice was correct, after the agency which their attorney had exercised in leading him to believe that the service was erroneous. Exceptions overruled.