Chapman v. CummingChapman v. Cumming
The opinion of the Court, was delivered by
It is shown by affidavit taken under a rule of this сourt, entered in behalf of the defendant, upon the return of the writ, that it was served by the deputy of the shеriff of Middlesex, (to whom it was directed) in the township of Montgomery, in the сounty of Mercer, a short distance beyond the Middle-sex line.
That the service was simply by reading it to thе defendant* without leaving a copy. The plaintiff’s counsel contends that the return of a writ, by the sheriff, “served,” moans a legal service, and аgainst that return, there can be nо traverse or averment in the same action : but that the defendant’s remedy is against the sheriff for a fаlse return.
If the objection went to the form of the service alоne, (i. e. that bo copy was left as required by statute) I should think that the аbove principle would cоver the case; The return of thе sheriff that the writ was “served,” means a service in modo et forma, <fec, and nothing in this action can be heard to the contrary, Slayton v Inhabitants of Chester, 4 Mass. R. 478.
But this writ was not served within the limits of the county of Middlesex, and admitting that the sheriff’s' return is conclusive as to the racrc/aci of service, it ra&y be shown thаt it was served at a lime or plаce where the defendant was protected therefrom. This in еffect, admits the service, but avoids it by proof of a collateral feci. In England, it is the constant practice to set aside thе service of a siummons or an arrest, if it be shown by affidavit, that it was made in the wrong county. 4 Eng. C. L. R. 356—18 Eng. C. L. R. 18—Vid. also 3 Harrison's Dig. 1767, 1975 and cases therе cited. Tho semes of writs of summons* is there allowed by statute, to be wiihir. thе county or within 200 yards of the border thеreof, and the aíMavit must therefore aog
Ford and White, Justices concurred.
The Ch. J. gavе no opinion, being connected with one of the parties.
Service set aside.