Willard v. Gage , 103 Mass. 354 ( 1869 )

Colt, J.

The service was sufficient. It is required to be made upon the creditor, his agent or attorney, and the statute declares in words that the person who made the writ may always be regarded as the attorney of the creditor, where an arrest is made on the writ, or any execution issued thereon. We are bound by this language. It is a provision for the convenience of the debtor, so that he may more readily find some person upon whom to serve the notice within the county. True, the attorney in this case had no duty to perform in consequence of the notice. And the plaintiff lost the opportunity to be present at the examination, for want of actual notice. But if the notice had been served on the officer who made the arrest, as the plaintiff claims it should have been, he would have been no better off, without some arrangement between them. Service on the officer has been held good, if neither creditor nor attorney resides or does business in the county, although the attorney may happen to be within the county. Richardson v. Smith, 1 Allen, 541. And if the attorney is temporarily absent, or cannot be found on reasonable search, service may bec made on the officer. Hyatt v. Felton, 9 Allen, 378.

Judgment for the defendants affirmed.