3 N.H. 198 | Superior Court of New Hampshire | 1825
delivered the opinion of the court.
The decision of this case depends upon the construction of the statute of Febuary 9, 1791, (1 N. H Laws 99) entitled u An act regulating process and trials in civil causes.”
The 8th section of that statute enacts, that “ in case the u defendant, at the time of the service of pny writ, be not i4 an inhabitant, or resident in this state, and the writ be not served on him in person, but the defendant’s goods or es- “ tate, within this state, are attached, then an attested copy " of the writ, and a particular description of the lands or “ goods attached thereby shall be given to the defendant, “ or left at his last and usual place of abode ; and the giving “ or leaving such copy shall be certified by the officer, who “ made the attachment, or by some officer proper to exe- " cute the same, in the state where the defendant lives, or u by some other person, and affidavit thereof made.”
The 17th section of the same statute provides, u that u when a suit shall be brought against a person, who is not an “ inhabitant or resident in this state, and no personal service “ he made on the defendant, or when the person, against “ whom any suit is brought, shall be absent from this state “ at the time of commencing such suit, and shall not have u returned at the time appointed for trial, the justices of the “ court, before whom such suit is, shall continue the action “ to the next term, and if the defendant doth not appear at “ the next term by himself or attorney, the court shall fur- “ ther continue the action to the next term, unless the plain-
There are some expressions in the section last mentioned, which appear more particularly applicable to actions commenced in the superior court of judicature, or the court of common pleas. Probably it may have been thought by some, that the provisions of the statute were confined to actions of that description, and did not extend to actions brought before justices of the peace. But we see no reason for such a distinction. The object of the legislature undoubtedly was to give the party sued an opportunity to be heard, before a judgment should be rendered against him. This justice requires in all cases. In this respect, there is no difference between small demands, of which justices of the peace have jurisdiction, and those of greater magnitude. The principle is the same, and the mischief to be prevented is the same, in both cases.
It is admitted, that at the time of commencing the original suit, Hayward, the plaintiff in error, was absent from the state, and resident at Charlestown, in the commonwealth of Massachusetts, and so continued until after the rendition of the judgment against him ; and that there ivas no personal service of the writ.
The defendant in error, in his answer, alleges, that Hayward had notice of the suit generally, but does not specify what that notice was, nor in what manner it was served.
The question then presented for our determination is, whether this allegation is a sufficient answer in law to the fact assigned as error ?
We are of opinion, that the notice contemplated by the 17th section of the statute is the same as that provided in the 8th section, “ an attested copy of the writ,” &c. served in the manner there prescribed ; that nothing short of that can be deemed notice within the true intent and meaning of the statute; and that to avoid the error assigned, it must appear by the .answer, that notice was given hy serving the party with an attested copy, &c. according to the provisions
The answer of the defendant in error in this case must therefore be adjudged insufficient; and the former judgment must be reversed.
