Lyon v. Russell

Libbey, J.

By R. S., c. 86, § 55, clause seven, a trustee is not chargeable "when service was made on him by leaving a copy, and before actual notice of such service, or reasonable ground to believe that it was made, he paid the debt due to the principal defendant, or gave his negotiable security therefor.”

This provision of the statute applies to a corporation summoned as trustee, when the service of the writ is made on an officer of the corporation, away from its office and place of business, and the debt due the principal defendant is paid by another officer of the corporation, whose duty it is to pay it, acting in his ordinary course of business, if be had no actual notice of the service, or reasonable ground of belief that it was made before payment, and the corporation, or its officer on whom the service was made, was guilty of no negligence in not giving such notice. Spooner v. Rowland, 4 Allen, 485 ; Williams v. Kenney, 98 Mass. 142.

The corporation, or officer on whom the service is made, must use diligence in giving notice of the service of the writ to the officer or agent whose duty it is to make the payment; and the question in this case is whether the trustee used due diligence in that respect. Service was made on one of the directors, at Augusta, by leaving a copy with him at five o’clock in the afternoon, January 11. The o ffice of the corporation and the paymaster’s office were in Portland. It was known that the paymaster was to leave Portland to pay off the laborers at Augusta, the next morning before business hours, so that a letter would not reach him; and the director on whom service was made, notified their local attorney, at Augusta, of the service, at once, and as the paymaster was to arrive at Augusta the next morning lie determined to see him and notify him of the service on his arrival, and for that purpose was at the depot on the arrival of the train. But the paymaster left the train before its arrival at the depot, went to the shop where the principal defendant worked, and, before the attorney had time to go to the shop, had paid the debt.

The director or attorney might well think that the surest and most practicable mode of giving notice to the paymaster was to see him on the arrival of the train the next morning, having no reason to apprehend that he would leave the train before it arrived at the depot. They were not obliged to use the telegraph in the night, if at all.

'We think under the circumstances of the case, the trustee used due diligence to notify the paymaster, and that payment was made without the fault of the trustee, or the director on whom service was made. Spooner v. Rowland, and Williams v. Kenney, supra.

.Exceptions overruled.

Appleton, C. J., Walton, Barrows, Baneorth and Peters, JJ„, concurred.