Safford v. Clark

105 Mass. 389

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1870
• Status: Published

Opinion

Ames, J.

By the Gen. Sts. e. 124, § 14, it is provided that “when a defendant or debtor has given notice of his desire to take the oath for the relief of poor debtors, no new notice of the same shall be given until the expiration of seven days from the service of the former notice, unless the former notice was insufficient in form or service.” The only question in this case was as to the sufficiency of the first notice, the second having been given within less than seven days after the first. The length of the notice to which the creditor is entitled depends upon the distance of the place of the intended examination from the place of service, and is frequently to be reckoned by hours rather than by days. Upon the service of the notice in this case, the officer made a return which wholly failed to furnish to the • examining magistrate and to the debtor any means of knowing whether legal notice had been given or not. It was therefore an insufficient return; but the right of the debtor to issue the new notice is not made by the statute to depend upon the sufficiency of the officer’s return. An incomplete return can be amended; Park v. Johnston, 7 Cush. 265; and the examination might have been adjourned for the purpose of ascertaining the particulars as to the hour of the service and the distance to be travelled, and in that way to make the requisite amendment. Tilden v. Johnson, 6 Cush. 354. Smith v. Randall, 1 Allen, 456. Lord v. Skinner, 9 Allen, 376.

The case finds that in point of fact the first notice was sufficient both in form and service, and there seems to be no ground for saying that the indistinctness of the officer’s return would of itself justify the issue of the new notice. The result therefore must 1 e Judgment for the plaintiff.