JOHN H. CALLAGHAN vs. D.W. WHITMARSH and another.

CONTRACT, against D.W. Whitmarsh and Alvin C. Brownell, upon a poor debtor's recognizance, entered into on September 3, 1886, under the Pub.Sts. c.162 § 28, by the first-named defendant as principal, and the other defendant as surety, and containing the usual conditions. The case was submitted to the Superior Court, and after judgment for the plaintiff, to this court, on appeal, upon agreed facts, the material parts of which appear in the opinion.

L.E. White, for the defendant surety.

F.V. Fuller for the plaintiff.

FIELD, J. It appears, by the agreed statement of facts, that “the only alleged breach of the recognizance whereby the plaintiff seeks to recover, is the fact that the notice required to be given by Pub.St. c. 162, § 32, to the judgment creditor,” etc., was served by the officer's giving in hand to the creditor's attorney the original notice, instead of an attested copy. At the argument, it was contended, among other things, that the subsequent proceedings before the magistrate were void, because he could not have had before him the notice, with the officer's return of service upon it. The record of the magistrate is not before us, and it is consistent with the agreed statement of facts that the officer served the original notice, and made his return to the magistrate upon an attested copy. We are not required to determine the validity of these subsequent proceedings.

In Young v. Capen, 7 Met. 287, it was held that reading a notice to a creditor was “not a compliance with the statute, literal or substantial,” which required that the notice be served by delivering an attested copy, and it was said “that the service

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required by the statute is manifestly more beneficial and useful than reading.”

It is manifest that delivering the original notice is as beneficial and useful to the creditor as delivering an attested copy. The argument is that there must be a literal compliance with the statute, and that the statute requires service by an attested copy. That errors in the terms of the notice, which have no tendency to mislead the creditor, do not make it insufficient, if properly served, has been often decided. Calnan v. Toomey, 129 Mass. 451.

In Wilbur v. Ripley, 124 Mass. 468, the court reversed a judgment entered upon default in a writ of entry, because an attachment of the defendant's property had been made, and the service of the writ was by leaving an attested copy, and not by leaving an original summons. The statutes then in force provided that “when goods or estates are attached,” etc., “there shall be a separate summons, to be served on the defendant after the attachment, and the service thereof shall be a sufficient service of the original summons.” Gen.St. c. 123, § 11. This separate summons was required to be served by delivering it to the defendant, or by leaving it for him; but an original summons without an attachment was required to be served by reading it to the defendant, or by delivering to him an attested copy, or by leaving such copy for him. § 23. A separate summons informs the defendant that his goods or estate have been attached to an amount expressed in the summons, while the writ contains only a command to attach them. St.1784, c. 28, § 1. The two are not literally or substantially duplicates or copies one of the other.

In the case at bar, the service of the notice was not the commencement of the proceedings. The defendant Whitmarsh had been arrested upon execution, and, desiring to take the oath for the relief of poor debtors, but not desiring a time fixed for his examination, had entered into a recognizance with Brownell, the other defendant, as surety, before a magistrate, pursuant to Pub.St. c. 162, § 28. The notice given was for the purpose of informing the creditor that Whitmarsh desired to take the oath at a certain time and place expressed in the notice. This notice must be in writing, and signed by the magistrate in his official

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capacity. § 31. The contents of the original and of the copy are the same. The statute intended that the creditor should have a notice in writing, in order to insure the certainty which a writing gives; but whether the officer should deliver the original, and return a copy, or the reverse, is a matter of statutory regulation, made for the purpose of directing the manner in which the notice should be served. So far as the rights of the creditor are concerned, we think that the service in this case was a substantial compliance with the statute, and that a literal compliance was unnecessary. See Eaton v. Miner, 5 N.H. 542.

Judgment for the defendants.