Holmes v. Baldwin

The opinion of the Court was drawn up by

By the agreed statement of facts it appears, that the judgment was rendered on the third day of October, the execution bears date on the seventh of October, and the officer’s re*400turn upon it is of an arrest on the eighteenth of November and a discharge by giving bond, which bears date on- the- third of October, 1836. The return of the officer must be considered as stating the day of arrest truly until the contrary is made to appear. The date of the bond affords no satisfactory proof to the contrary; it is not the declaration of the officer but of the defendants ; and the bond might well take effect from the day of the delivery. It recites the amount of the debt, and of the costs, and of the fees for execution; and of the officer’s fees, and is for double the amount thus stated. No copy of the judgment or of the execur tion is produced, and'no legal evidence is offered proving,.that the defendants did not correctly state them in the -boiid, and they- must abide by their own declaration.

The act. of 1835 allows -a service of the notification to be. made upon the attorney only, when the creditor resides without the state. The notice being illegal is not cured by the certificate of the Justices, for it is agreed, that it recited only a notice to the attorneys of the plaintiff without deciding upon it.

It. is contended, that this defect is cured by the statute of. 1839, which provides, that if, it- shall appear, that the debtor prior to a breach of the bond had taken, the oath after notice issued by himself- or' by a Justice of the Peace, “ and served upon the creditor named in the bond, or upon the attorney of such creditor,” the defendants shall have a right to a trial by a jury and to make certain defences named. It is quite evident, that this act did not intend to prescribe, what should be a legal service of .the notice, for it does not determine how many days it shall be served before the time of taking the oath, nor by whom the service shall be made, nor-whether.it should be made by a copy or otherwise; It must have been-the intention, that the service as to time and manner should be legal, as well as that it should be upon the person designated by law. The expressions, upon the creditor or upon the attorney of the creditor, are explained by the law to mean, upon the creditor when the law so requires, and upon the attorney, when that is permitted. If this be not - the true construction no service could be good under the act of 1839, when made upon the clerk of the court or Justice issuing the execution in those cases.where no .creditor, attorney or agent resides within the *401State, as provided by the statute of 1835. The object of the statute of 1839, as respects the notice, ■wá'S' to make the notification effectual although issued by a Justice or by the party, but it does not appear to have been intended to change the time, manner, or mode of serving it, or the person upon whom service should be made as provided by law.

Exceptions overruled: