Homer v. Sinnott

119 Mass. 191 | Mass. | 1875

Devens, J.

Neither the plaintiffs, nor any agent or attorney for them, residing in the county of Worcester, or having any usual place of business therein, service of the notice of intention to take the poor debtor’s oath was properly made upon the officer who had arrested the debtor ; and unless a longer time previously to the examination is necessary where notice is thus served than would have been required if service had been made at the same time and place upon the plaintiffs or their attorney, the service was also in these respects sufficient. Gen. Sts. c. 124, § 13. Jacot v. Wyatt, 10 Gray, 236.

While the allowance of time is fixed by the clause of c. 124, § 13, which provides for service of the notice upon the plaintiff, his agent or attorney, and there is no express direction in reference to it in the clause in which provision is made for service upon the officer, the reasonable interpretation of the statute is that in such case the time is to be computed as in the case of service upon a plaintiff' or his attorney. Unless this is so, no rule whatever has been given, and we should be left to determine, without any guide from the provisions of the statute, whether the time of service of the notice should be, as the plaintiffs contend, such as would enable the officer to communicate with the plaintiffs and for them to reach the place of examination, or whether it should be computed from the place of residence of the plaintiffs, or that of their attorney, or from the place of business of one or the other. If either of such rules were adopted, the delay which the statute intended to avoid would inevitably occur where the plaintiff or his attorney resides in a remote county, and the speedy hearing to which the debtor is entitled would not be afforded him. If the plaintiff has arrested any person out of the county in which he or his attorney resides, or has his place of business, he can always secure sufficient notice to a person properly instructed by employing an agent or attorney therein who may appear and contest the discharge of the debtor 3 but, if' he does not do this, the examination is not therefore to be delayed.

The notice served upon the officer is not for the purpose of enabling him to appear and contest the discharge of the debtor, nor is he under any legal duty to communicate with the plaintiff or his attorney, when such notice is served upon him, to enable them to do so. It is the duty of the creditor to have an officer at the place of examination, in case he shall desire to have the debtor rearrested, and should his discharge be refused him. Stone v. Russell, 11 Gray, 226. The notice served upon the officer enables him, if so instructed by the creditor, to be present at the place of the examination, and to rearrest the debtor, if the magistrate refuses to discharge him, and makes a certificate to that effect upon the execution. It might easily happen that the creditor would desire to be prepared for the contingency of ,a refusal by the magistrate to grant the discharge, even if he 'should not desire to incur the expense of contesting it in person or by attorney. Judgment for the defendants.