Way v. O'Sullivan

106 Mass. 118 | Mass. | 1870

Morton, J.

The only objection to the validity of the discharge in this case is, that the notices served upon the creditor do not identify the executions to which they were intended to be applicable.

The object of the notice is to inform the creditor of the time and place appointed for the examination'of the debtor. When the debtor has been arrested on only one execution, it is uniformly held that a notice in the form provided by the statute, simply reciting that he has been arrested “on execution in your favor ” is sufficient, without any further description of the execution. This is sufficiently specific, because its import cannot be misunderstood or mistaken. In Merriam v. Haskins, 7 Allen, 346, it was held that, where a debtor had been arrested on two executions, a single notice to the creditor, merely reciting that he had been “ arrested on execution in your favor,” without any designation of which of the two executions was referred to, was not sufficient. In the case at bar, the debtor had been arrested upon two executions, and two notices in the form prescribed by the statute were issued and served upon the creditor at the same time. The creditor was thus informed, to a reasonable certainty, that the intention of the debtor was to seek to be discharged from both the executions. He knew that the debtor had been arrested upon two executions in his favor, and upon two only, and, upon receiving two notices, the only natural and reasonable inference would be, that they were intended to apply to both executions. The case is in this respect distinguishable from Merriam v. Haskins. For these reasons, a majority of the court is of opinion that the notices were sufficient and the discharge legal.

Exceptions overruled.