Walker v. Tewksbury

Appleton, C. J.

The time in which service is to be made and the mode and manner of serving process are regulated by statute.

The statute authorizes trustee process and prescribes the service” when individuals are defendants and trustees.

By it. S., c. 81, § 18, process upon corporations must be served “ thirty days before the return day thereof.”

By c. 131 of the acts of 1873, an amendment is made of the eighth section of E. S., c. 86, and it is therein provided that “all corporations may be summoned as trustees, and the writs served on them as other writs on such corporations.”

The creditor may sue out trustee process and attach the property of his debtor in the hands and possession of a corporation. He can only make a valid service on such corporation by giving thirty days notice. There is no time in which he has not a right to such process when process can be legally sued out and served. The writ cannot have different return days — one for the defendant and another for the corporation sued as trustee. As the right to sue out trustee process is given to all and at all times in which process may be sued out, it follows that the service to“be made upon the defendant must correspond to that upon the trustee, else there will be periods of time each year in which no suit against a corporation as trustee can be sued out and served. Nor does the defendant suffer any harm thereby, as there is no rule of the common law or provision of the statute which forbids his payment of what he may owe before the return day of the writ.

Exceptions overruled.

Dickerson, Danforth, Yirgin, Peters and Libbey, JJ., concurred.