Richardson v. Smith

83 Mass. 541

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1861
• Status: Published

Opinion

Dewey, J.

The paper issued by W. S. Davis, a master m chancery for the county of Worcester, and proved to have come from his hands, was sufficiently identified as an original notice, to lay the foundation for the introduction of the evidence of proper service of the same, and the examination and discharge of the debtor by the same magistrate at a subsequent day.

2. The service of the notice of July 8 was a legal service. The conceded facts show that the creditors and their attorney had no residence or place of business in the county of Worcester. The fact that the agent of the creditors happened to be in that county on the day when the service was made upon the officer who made the arrest does not affect the case, such agent having no actual residence or place of business in the county. The return of the service of this notice upon Newton, the officer, by the constable of Westborough, is prima facie sufficient. It is to be presumed, in the absence of any proof to the contrary, that the service was made in the town of Westborough, the service being returned as made by a constable of that town, who bad jurisdiction to serve process only in Westborough.

3. There was no objection shown to the validity of the discharge under the notice issued on the 8th of July, by reason of a previous notice for the like purpose having been given within seven days preceding. The plaintiff failed to show any such previous notice. The copy received by mail by the plaintiffs’ agent from the officer who made the arrest, was properly rejected as incompetent evidence. No reason was shown for not producing the original notice which had been issued, and the return of the officer thereon, which would have been the primary evidence of the facts attempted to be shown.

Exceptions overruled.