Young v. Capen

Shaw, C. J. The single question in the present case is, whether Briggs, the principal defendant, was duly admitted to take the poor debtors’ oath, and was thus rightfully discharged from his imprisonment. If he was, his bond was not forfeited ; otherwise, it was. The proceeding was intended to conform to St. 1842, c. 56, § 1, which provides that a debtor^ arrested on mesne process or execution, may be admitted to his oath, before two justices of the quorum, within a very short time after his arrest; giving notice to the creditor, or his agent or attorney, in the manner therein directed. The first question is, whether the certificate of the two justices is conclusive of the fact that due notice was given; and the court are of opinion that it is not. The power given to two magistrates to administer the oath and discharge the debtor, is a very limited authority, conferred for a special purpose, in a precise case; and unless the required notice is given, they have no jurisdiction. Putnam v. Longley, 11 Pick. 487. Slasson v. Brown, 20 Pick. 436. Then the question is, whether due notice of the time and place for administering the oath was given, conformably to law. The St. of 1842, c. 56, requires that notice to the plaintiff, or his agent or attorney, shall be given in manner and on the terms provided in §§ 16-19 of c. 94 of the Rev. Sts. for notifying parties taking depositions. Section 18 of that chapter provides that the notice shall be served by delivering an attested copy thereof to the person to be notified, or by leaving such copy at his last and [290] usual place of abode. Section 19 provides, that instead of the written notice before prescribed, the notice may be given verbally by the justice, &c. The return of the officer, in the present case, shows that he served the notice by reading it to the creditor in his presence and hearing. This we think was not a compliance with the statute, literal or substantial. Where the statute directs a particular mode of notice, it must be given accordingly. So where the statute makes a deposition evidence, if it has been recorded within a certain time, if it is not recorded within the time, it is not admissible. Bradstreet v. Baldwin, 11 Mass. 229. So where a writ had been served by leaving a summons with an agent, when the statute directed it to be left at the defendant’s last and usual place of abode, the judgment was held to be erroneous. Peck v. Warren, 8 Pick. 163. But in a case like the present, the service required by the statute is manifestly more beneficial and useful than reading. The officer may read it hurriedly, and the creditor may have no opportunity to take a memorandum. It is not a notice to appear before a well known court, at a time and place fixed by law. It is a notice to attend before persons at a particular place at a certain day and hour, and that very shortly. An authenticated copy of the notice is a much more beneficial and effectual notice; or, what the law makes an equivalent, a verbal notice from a magistrate, in whom the law places confidence for his capacity and fidelity, and who, it may be presumed, will give him all needed information. It was said, that in many cases reading a summons is regarded as good a service as leaving a copy. This is no doubt true; but it is in cases where the law has authorized that mode of service. Defendants defaulted.