Francis v. Howard

Ames, J. We see no reason to doubt the legality of the arrest of the debtor. Nothing contained in any statute upon the subject of arrest upon mesne process requires that the affidavit necessary for that purpose should be sworn to before a magistrate within the county in which the arrest is to be made, or in which the debtor resides or has his place of business. It appears that the creditors had somewhat less than six hours’ notice of the intended examination of the debtor, and that the distance from the place of service to the place of examination was fifteen miles. All objection to the sufficiency of this notice on the ground that it was served by an officer outside of the limits of his own county was expressly waived. But no other irregularity was waived, and the ease stands substantially in the same position as if the parties had agreed that the place where the notice was served was within the county of Norfolk. It is manifest that no proper notice was given to the plaintiffs, if they were entitled to notice at the rate of not less than one day for every twenty-four miles of travel. Gen. Sts. c. 124, § 13. We see no reason why this objection to the notice may not be taken by the plaintiffs. They do not thereby contradict the officer’s return, as that does not undertake to designate the place of service, except as being within his precinct. Richardson v. Smith, 1 Allen, 541 [239] Smith v. Randall, 1 Allen, 456. As there are places more than fifteen miles from the place of examination within his precinct, the distance from that place tc the place of service may be shown. The appearance of the plaintiffs’ attorney to examine the notice and return was in no sense a waiver of the objection. They are entitled for these reasons to Judgment on the verdict.