Lowery v. Caldwell

• Citation: 28 N.E. 451,139 Mass. 88
• Parties: LOWERY v. CALDWELL et al.
• Decision Date: 07 March 1885
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 88

28 N.E. 451

LOWERY

v.CALDWELL et al.¹

Supreme Judicial Court of Massachusetts, Essex.

March 7, 1885.

Report from superior court, Essex county.

Action on a poor debtor's recognizance submitted on an agreed statement of facts. The statement showed that the debtor had been discharged after notice of his intention to appear for examination and take the poor debtor's oath had been served on the judgment creditor, and the latter had failed to appear. The copy of the notice annexed to the agreed statement showed that the hour for the examination was not named, but the return of the officer who served it showed a legal and sufficient notice. Judgment for defendants. Affirmed.

C. Sewell, for plaintiff.

G.M. Hobbs, for defendants.

DEVENS, J.

The defendant Caldwell, having been arrested upon mesne process, entered into a recognizance under Pub.St. c. 162, § 28, that within 30 days from the day of his arrest he would deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof as provided by law, appear at the time fixed for his examination, and not depart without leave of the magistrate, nor make default, but abide the final order of the magistrate thereon. He did take out such notice in proper form, and delivered it to an officer competent to serve the same, who has made return of a service thereof which is legal and sufficient. If these were all the facts that appeared, this return would be conclusive between the parties in favor of the defendants, and the remedy of the party injured by such return, if it were actually false, would be against the officer. Eastman v. Perkins, 10 Cush. 249; Niles v. Hancock, 3 Metc. (Mass.) 568; Collins v. Douglass, 1 Gray, 167;Davis v. Putnam, 5 Gray, 321;Henshaw v. Savil, 114 Mass. 74;Taylor v. Clarke, 121 Mass. 319;Stewart v. Griswold, 134 Mass. 391. But a copy of the notice actually delivered by the officer is annexed to the agreed facts, by which it appears that no hour of the day was fixed thereby when the examination would take place. The plaintiff contends that the agreed facts are to be construed as a waiver by the defendant of the conclusive character of the officer's return, and a submission to the court of the inquiry as to the validity of the notice actually served. If it clearly appeared that it was the intention of the parties to submit the facts to the court irrespective of the officer's return, that would not be regarded. Boston v. Tileston, 11 Mass. 468. On the other hand, if the parties only agreed to the facts if admissible as against the officer's return, and that was legally conclusive, it would still be treated as such, notwithstanding such agreement. Niles v. Hancock, ubi supra. In Boston v Tileston, ubi supra, the return of the officer was not made a part of the agreed statement. The question which the parties there submitted was whether certain persons who had acted as appraisers in the levy of an execution on land were disinterested freeholders, and, although the court speaks of the return on the execution as presumably one which described them as such, it does not treat this return as before them. This case is cited with approval in Com. v. Greene, 13 Allen, 251, and Wolcott v. Ely, 2 Allen, 338; but the latter case is...