The opinion of the Court was drawn up by

certificate signed and sealed by two justices of the peace and quorum of the county of York, required by R. S., c. 113, § 31, is presented in defence of this suit. It is insisted, in behalf of the plaintiff, that the service of the citation is fatally defective, on the ground that the citation is such that the service contemplated by the statute was not and could not have been made.

In the application of the debtor to the magistrate for a cit.atiqn to the creditor to appear, &c., it is stated, among other things material, and which are deemed by the Court sufficient, that he has been arrested, in the county of York, on an execution issued on a judgment obtained against him, in favor of Chester C. W. Smith of Portland, in the county of'Cumberland, whose attorney of record in said suit is Samuel Luques, Esquire, of Biddeford, in the county of York; and the justice of the peace to whom the application is directed, is requested to cite said Luques, as the said creditor is out of the State. A citation was issued upon this application to said Luques, *103declared in the citation to be attorney of record of said creditor, the said creditor being alleged also in the citation to be out of the State. The sheriff of the county of York made, upon said citation, return that he had made service of the application and citation, by reading the same in the presence and hearing of said Luques, the attorney of the within named creditor, in the original suit, the creditor within named living out of the State of Maine, he could make no further service.

No particular form of the citation to the creditor, or the application therefor, is required; but service of the former shall be made upon the creditor, if alive and within the State, otherwise upon the attorney in the suit, &c. E. S., c. 113, §§ 23 and 24.

The creditor and the attorney are both named in the citation and in the application therefor; and if the officer, while he had them in his hands, had found the creditor in his precinct, and' had made seasonable service on him, by reading the same in his presence and hearing, we cannot doubt that the service would have been sufficient. The evidence in the case, that the creditor was out of the State at the time the citation was made, and also at the time when it was served, being uncontradicted, is sufficient proof of that fact, and the service afforded all the notice to the creditor which the statute required, and the defence is sustained.

Plaintiff nonsuit.