
    Theodore Hyatt vs. Horace Felton & another.
    If the agent or attorney of a foreign creditor, who has caused his debtor to be arrested on execution, is not found within the county where the arrest was made, by reason of his temporary absence from his residence therein, the notice of the time and place for the examination of the debtor may be served on the officer who made the arrest.
    If a poor debtor is entitled to be discharged without an examination, under Gen. Sts. c. 124, \ 48, by reason of the failure of the creditor or any one in his behalf to attend, his discharge will not be rendered invalid by the fact that before receiving it he took the oath.
    Contract on a recognizance taken under Gen. Sts. c. 124, $ 10, dated on the 15th of October 1862.
    It was agreed, in the superior court, that the plaintiff has always resided in New York, and his attorney, who was a resident of Boston, was temporarily absent from the state and could not be found at the time when the notice of the time and place appointed for the examination of the debtor was to be served; and the notice was accordingly served on the officer who made the arrest. The officer appeared “ as deputy sheriff,” with the execution, before the magistrate, but neither the plaintiff nor his attorney appeared; and the magistrate discharged the debtor upon his taking the oath.
    
      On these facts, judgment was rendered for the defendants, and the plaintiff appealed to this court.
    
      W. L. Burt, for the plaintiff.
    -It is not sufficient that the attorney of the creditor is temporarily absent. The Gen. Sts. c. 124, § 13, provide for service upon such attorney, by leaving a copy at his last and usual place of abode. Section 48 provides that, if the creditor, or some one in his behalf, does not attend, the debtor shall be discharged without an examination. The magistrate had no authority to discharge him except in the manner prescribed.
    
      A. A. Ranney, for the defendant.
   Dewey, J.

1. The service of the notice was sufficient, under the provisions of Gen. Sts. c. 124, § 13. May v. Foote, 7 Allen, 354. 2. The fact that the party took the poor debtors’ oath before the magistrate discharged him did not render his discharge less valid, even supposing the case to have authorized a discharge without oath, as provided in certain cases. Gen. Sts. c. 124, § 48. Judgment for the defendants.  