Salmon v. Nation

109 Mass. 216

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1872
• Status: Published

Opinion

Morton, J.

The plaintiffs contend that the service of the notice was not sufficient. The notice was served upon the attorney of the plaintiffs, he and the plaintiffs severally having their residence and places of business in the county of Middlesex. We think this service was sufficient under the Gen. Sts. c. 124, § 13.

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This statute provides, in general terms, that the notice shall be served upon the creditor, his agent or attorney. Under this general provision, the service may be made upon either the creditor or his attorney, in cases where both reside or have places of business in the same county where the arrest is made. The subsequent provision that, where the creditor is dead or not a resident in the county where the arrest is made, the notice shall be served upon the attorney, if he lives in the county or has his usual place of business therein, makes an exception to the general provision. But it leaves the general provision in force in all cases to which the exception does not extend. The case at bar is not within the exception, and therefore a service upon either the creditor or the attorney is sufficient. Putnam v. Williams, 2 Allen, 73. Way v. Carlisle, 13 Allen, 398.

The plaintiffs also contend that the notice is insufficient in form because it does not state with certainty the time appointed for the examination of the debtor. The notice is dated August 30,1870, and states that “ the third day of September at one of the clock in the afternoon ” is appointed as the time for the examination. The word “ next ” is omitted, probably by accident, after the word “ September.”

The strict rules which govern pleadings in criminal cases ought not to be applied to notices of this kind. The creditor is entitled to be informed with reasonable certainty of the time and place fixed for the examination. But if the notice served upon him is in such terms that every person of common understanding, in the situation of the creditor, would be informed of the time and place intended to be fixed, it is sufficient. In this case the creditors knew the date of the arrest, and that the thirty days within which the debtor must deliver himself up for examination would expire early in September 1870. No person in their situation could fail'to understand that the time fixed for the examination was the third day of September 1870. The verbal error in the notice, which could not mislead them, ought not to vitiate the proceedings of thé magistrate. Bussey v. Briggs, 2 Met. 132. Collins v. Douglass, 1 Gray, 167. Pierce v. Phillips, 101 Mass. 313.

Judgment for the defendants.

“ The notice shall be served by any officer qualified to serve civil process, by giving to the plaintiff or creditor, his agent or attorney, an attested copy thereof, or by leaving such" copy at the last and usual place of abode of the plaintiff or creditor, his agent or attorney, allowing not less than one hour before the time appointed for the examination, and time for travel at the rate of not less than one day for every twenty-four miles’ travel. When there is more than one person plaintiff or creditor, or more than one agent or attorney, service on one shall be sufficient. When the plaintiff or creditor is dead or not a resident in the county where the arrest is made, the notice shall be served upon the agent or attorney if he lives in the county or has Ms usual place of business therein; but if no such agent or attorney is found within the county, the notice may be served on the officer who made the arrest. The person who made the writ may always be regarded as the attorney of the plaintiff or creditor when an arrest is made on the writ or any execution issued thereon.”