Hill v. Bartlett

124 Mass. 399, 1878 Mass. LEXIS 335

• Court: Massachusetts Supreme Judicial Court
• Decided: May 3, 1878
• Status: Published

Opinion

Ames, J.

The attorney of record for the plaintiff, having recently taken out the execution against McGuire, and having delivered it to an officer for immediate service by arrest, must be supposed to have anticipated the possibility that the- debtor might seek relief from imprisonment in the mode provided by the statute for the relief of poor debtors. The attorney must also have known that he was the proper person to be served with notice, if the debtor should desire to take the poor debtor’s oath. He knew also that he was not the attorney for William Hill and others, and that he had nothing to do with any execution in favor of William Hill and others against David McGuire, and he did not know, and had no reason to suppose, that there was any such execution in existence. The notice informed him of the name of the debtor, and of the fact that he had been arrested on an execution in which William Hill had an interest as creditor, and in which W. B. French was attorney for the same William Hill. It is impossible to believe that he was misled by the notice, or that he could have failed to understand what execution it was to which the notice related. There is no reason why the strict rules which govern pleadings in criminal cases should be applied to notices of this kind. The time and place of the proposed examination were distinctly pointed out, and, although there was a verbal error in the description of the execution, there was no misnomer of William Hill, the description really created no uncertainty whatever, and ought not to vitiate the proceedings of the magistrate. Pierce v. Phillips, 101 Mass. 313. Salmon v. Nation, 109 Mass. 216. Way v. O’Sullivan, 106 Mass. 118. Collins v. Douglass, 1 Gray, 167. Dana v. Carr, ante, 397. In Slasson v. Brown, 20 Pick. 436, which is cited by the plaintiff, there was an entire misnomer of the creditor. Judgment affirmed.