124 Mass. 181 | Mass. | 1878
It is essential to the validity of a discharge granted on an application to take the poor debtor’s oath, that a proper notice be duly served on the proper person.
By the Gen. Sts. c. 124, § 13, it is provided that when, as in the case at bar, the creditor does not reside in the county where the arrest is made, and no agent nor attorney for him is found therein, the notice may be served on the officer who made the irrest, and that the service shall be made by any officer qualified to serve civil process. If the service is made on the wrong person, even though that person be the creditor, as may happen when he does not, but his attorney does, reside in the county, the error is fatal to the proceedings. Putnam v. Williams, 2 Allen, 73. It is not a question, therefore, whether the creditor was practically injured by the manner of service, or had actual knowledge of the application and of the time fixed for examina
The debtor in this case was entitled to proceed on a notice served, by an officer qualified to serve civil process, on the creditor or his attorney, or on the officer who made the arrest, at his election. No service on either was made by an officer, but it is contended that the certificate of the officer who made the arrest, accepting service of the notice, after the delivery to him of a copy of the notice, coupled with his oral waiver of service by an officer, was equivalent to the service prescribed by the statute. It is undoubtedly true that the service required by statute may be waived, and that such waiver may be proved by paroi. Lord v. Skinner, 9 Allen, 376. Francis v. Howard, 115 Mass. 236. But waiver of a right can be made only by the person to whom it belongs, acting in person or by his agent. The officer who made the arrest had no interest in the proceedings, was not to be affected by the result, and was in no sense the agent of the plaintiff by reason of having made the arrest. Way v. Carlisle, 13 Allen, 398. Homer v. Sinnott, 119 Mass. 191. And the case finds that he had no other authority in the premises than that which resulted from his official connection with the case. His act therefore was in no way binding on the plaintiff, and cannot be held to have affected his rights. His acceptance of service was not a waiver by the plaintiff of his right to have the notice served by an officer qualified to serve civil process. It follows that the proceedings before the magistrate were defective, and the discharge of the debtor was illegal. There has been a breach of the recognizance, and there must be
Judgment for the plaintiffs.
