Bennet v. Fuller

4 Johns. 486 | N.Y. Sup. Ct. | 1809

Per Curiam.

The question is, whether there has been a legal service of this writ. It appears, from some of the cases, (Cro. Car. 416. 19 Viner, 443. note. Moore, 547.) to be a doubtful question, whether a sheriff can legally serve a writ where he is the plaintiff. In the present case, the writ was served by a deputy. No bail was required, and the sheriff returned the writ, and is responsible. As the practice of deputing the plaintiff to serve his own writ has been of long duration, we think it would be going too far to say, that the plaintiff cannot, in any cause, Serve a writ in his own favour. A declaration in ejectment is always served by the party j and where the writ is served without exacting bail, there can be no oppression, and it is analogous to the service of a declaration in ejectment. As the defendant, however, appears to have been mistaken as to the service, and swears to merits, he ought to be let in to plead, on payment of costs.

Van Ness, J. dissented.

Rule granted'.