The question in this action upon a recognizance is as to the validity of the service of the notice fixing a time and place for the examination of a debtor arrested on execution. The arrest was made in Middlesex, and the notice was served on the officer who made it in that county. The creditor was not a resident of that county; one of her attorneys lived there, but had his place of business in Boston, and at the time of the service, it is agreed, was absent from the county, and at his place of business in Boston.
The plaintiff contends that the service should have been upon her attorney having his residence in Middlesex, notwithstanding his absence.
The leading provision of the statute is, that personal service or service by copy shall be made on the creditor or his agent or attorney. There is an exception to this when the creditor is not a resident of the county where the arrest is made; service is then to be made on the agent or attorney if he lives in the county or has his place of business therein. The exception is imperative, but it is followed by the provision that, if “ no such agent or attorney is found within the county,” the service may be on the officer who made the arrest. Gen. Sts. c. 124, § 13. In Hyatt v. Felton, 9 Allen, 378, where the attorney of a foreign creditor had his residence in the county where the arrest was *509made, but was temporarily absent at the time, service on the officer was held good. We must follow the interpretation thus given to the provision which permits service on the officer, when the creditor does not reside in the county, and “no agent or attorney is found within the county.” Way v. Carlisle, 13 Allen, 398. May v. Foote, 7 Allen, 354. Willard v. Gage, 103 Mass. 354. The service in such case is good, notwithstanding the legal residence of the attorney is in the county.
Judgment for the defendant.