Dwyer v. Winters

Ames, J. A judgment debtor who has been arrested on an execution, and. who has recognized to deliver himself up for examination, in order to obtain the relief provided by statute for poor debtors, is bound to seasonably inform the creditor of the time and place appointed for the examination. The statute prescribes no specific form of notice in such a case, and any form of notice would undoubtedly be held sufficient that imparts this information, even though it identifies the execution (in case there has been but one) by a simple reference in general terms to an execution in favor of the creditor upon which the debtor has been arrested. Although the notice in this case was to C. S. Dwyer, instead of giving the plaintiff’s name at length, it cannot for a moment be supposed that the creditor on whom the notice was served could have failed to understand that the notice was meant for himself. He knew also that he held an execution against a person whom he had described as Henry Winters, and had caused him to be arrested. The notice informed him that a person, whom he had caused to be arrested on execution, was seeking to be relieved from arrest and imprisonment by taking the oath as a poor debtor. He might have inferred from the tenor of the notice that there had been some mistake as to the true name of the debtor, by the omission of the initial letter of a middle name, and the addition of the letter “ s,” but he must have understood that Henry D. Winter professed to be the identical person who had been arrested on that execution. There was no other execution to which the notice could possibly apply. Under the circumstances, the import of the notice could not be misunderstood or mistaken. Its legal effect was the same as if it had been thus expressed, viz. ■ “ Henry D. Winter, arrested on an execution in your favor under the name of Henry Winters, desires to take the oath,” &c. The notice given was therefore substantially such as the statute requires. See Dana v. Carr, 124 Mass. 397; Hill v. Bartlett, 124 Mass. 399. Judgment affirmed.