Way v. Wheeler

112 Mass. 87

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1873
• Status: Published

Opinion

Morton, J.

The General Statutes provide that the notice of an intention to take the poor debtors’ oath shall be served “ 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 of travel.” Gen. Sts. e. 124, § 13. The St. of 1861, c. 112, provides that “ whenever the notice permitted by the thirteenth section of the one hundred and twenty-fourth chapter of the General Statutes shall be served by leaving a copy thereof at the last and usual place of abode of the plaintiff or creditor, his agent or attorney, not less than twenty-four hours shall be allowed before the time appointed for the examination.” It seems to us to be the obvious construction of these statutes, that where service is made by leaving a copy at his last and usual place of abode, the creditor is to be allowed not less than twenty-four hours in addition to the time allowed him for travel. The Statute of 1861 is designed as an amendment of the General Statutes, but it does not purport to make any change in the provision as to the time to be allowed for travel. That remains as before, and the only amendment is as to the time to be allowed in addition. That time is to be not less than twenty-four hours, instead of one hour, whenever the notice is served by leaving a copy at the last and usual place of abode of the plaintiff, his agent or attorney. In this case, therefore, the notice was insufficient. Exceptions overruled.