Pierce v. Phillips

101 Mass. 313 | Mass. | 1869

Gray, J.

By the act of congress of 1867, c. 180, any defendant arrested or imprisoned upon mesne process or execution issuing out of any court of the United States is entitled to be discharged by proceedings before a commissioner of the circuit court of the United States, in the same manner, taking the same oath, and after the same length of notice, as provided by the laws of the state in case of arrest or imprisonment on like process of the state courts in the same district. The laws of this Commonwealth provide that the notice issued by the magistrate to the plaintiff, that a defendant arrested on execution desires to take the poor debtors’ oath, shall be “ substantially in the following form : To A-B-; C-D-, arrested on execution in your favor, desires to take the oath for the relief of poor debtors at (naming the day and hour and place); ” and that, when the plaintiff is not a resident in the county where the arrest is made, the notice shall be served upon his agent or attorney, if living or doing business in the county. Gen. Sts. c. 124, §§ 12, 13.

The only objections taken by the plaintiffs to the validity of the discharge of the debtors in this case are, that the notice was not addressed to the plaintiffs, but to their attorney, and that it described the execution as having been issued in his favor. But the court is of opinion that neither of these objections is well founded.

This notice is addressed to “ William H. Towne, attorney for William L. Pierce and Edward T. Taylor.” Had these words been used by the attorney in executing a written instrument, they would, if consistent with the rest of the paper and the nature of the transaction, have made it the contract of the principals and not of the agent. Ballou v. Talbot, 16 Mass. 461. Tucker Manufacturing Co. v. Fairbanks, 98 Mass. 101. As the creditors resided out of the Commonwealth, the notice could be served upon their attorney Towne only, and upon no other person, not even upon the creditors themselves. Putnam v. Williams, 2 Allen, 73. The notice recites the names both of the creditors and of the debtors, and designates them as such respectively. It is manifest from these considerations that this notice is substantially in the form prescribed by the statute; that it is sufficiently addressed to the creditors; that the words 16 execution in your favor ” describe an execution in favor of the creditors, and not of their attorney; and that neither they nor he could possibly have misunderstood it.

The debtors and their sureties have therefore been lawfully discharged from their recognizance, and there must be

Judgment for the defendants.