Madison v. Rano

4 N.H. 79

• Court: Superior Court of New Hampshire
• Decided: February 15, 1827
• Status: Published

Opinion

Richardson, C. J.

This case has been very well argued and we shall now proceed in the first place to examine the statutes and see what notice they require to be given to the creditor before a debtor can be legally discharged upon taking the oath. It is believed that when the requisitions of the statutes are well understood. there can be no difficulty in settling the question which has been raised in this case.

The statute of February 15, 1791, enacts that “such court or justices applied to shall notify in writing the creditor, &c. of the application made to them as aforesaid and of the time when and place where they will attend, &c. giving reasonable time for attendance of the party notified, and such notice being given or left in writing at the place of abode of the party so to be notified a reasonable time before the time ordered for such caption, &c.”

The statute of June 16, 1807, enacts “that no such debtor shall be admitted to the oath aforesaid, unless he shall have given notice to the creditor or creditors who committed him to] prison, or their agent or attorney, of the time and place, when and where such oath will be administered fifteen days previous to taking said oath.”

We are well satisfied, upon an attentive consideration of these statutes, that this clause in the statute of 1807 was not intended as a substitute for the clause in the statute of 1791, but merely to require the notice to be served “fifteen days” previous to the taking of the oath instead of “a reasonable time. ” We are therefore of opinion that there must be a notice in writing and that it must be served upon the person to be notified, whether party or attorney, by being delivered to him personally or left at his usual place of abode.

It is then very clear that the fact of actual notice found by the jury is wholly immaterial. And it seems to us to be equally clear that the notice left with Kimball at his store was not a legal notice. It was neither given to Crosby personally nor left at his place of abode. In addition to the authorities which have been cited by the plaintiff’s counsel, and which are very directly in point, is the case of the Commonwealth v. Cummings, 16 Mass. Rep. 194, where under a statute requiring notice to be left at the usual place of abode, a notice left at the place of business of the person to be notified was held to be insufficient. If this decision be correct, a notice left at Crosby’s office would not have been legal. It is the opinion of the court that there must be in this ease

A new trial granted.