Stinson v. Snow

10 Me. 263 | Me. | 1833

The opinion of the Court was delivered by

Mellen C. J.

The sufficiency of the plea in abatement is not contested, provided the defendant is not estopped to plead the facts which compose it: if he is so estopped, then the plea must be adjudged insufficient, and he must answer pver to the merits. In the replication, the plaintiff sets forth, in hcec verba, the officer’s return on the writ in the action, and distinctly relies on the return by way of estoppel.

A writ of attachment is directed to the proper officer; the summons to appear and answer to the action, is directed to the defendant. To make a legal service of such a writ, it is neces.sary for the officer who undertakes to serve it, to attach some of the defendant’s property, and deliver such summons to him, or leave it at his last and usual place of abode, or else arrest the body of the defendant. In the case before us, there was no arrest. In performing both the acts, which constitute a legal service of the writ, namely, attaching property and leaving the summons, the officer serving it, acts under the authority of the writ; and, without that authority, he cannot lawfully perform either of those acts. If he should have a writ against A., and, intending to leave at his last and usual place of abode, a summons to him to answer in that action, should by design or mistake, leave a summons directed to B., or a summons directed to A., but to answer to a different plaintiff, it is evident that in neither of those cases, would he act under the authority given to him by the writ, but, without any authority. Now, by inspecting the officer’s return, as set forth in the replication, it appears, that in making the service, that is, in making the attachment of property, and leaving the summons at the last and usual place of abode of the defendant, he acted by virtue of the plaintiffs’ writ. This is expressly stated; and what is expressly stated in the return, unless it is mere matter of Jaw, cannot be contradicted, except in an action against the officer for a false return. We may further observe, as a matter of almost universal practice, that officers in their returns on writs of attachment, seldom, if ever, describe, in any manner, the summons ; the language usually is, after stating the attachment, “ and gave a summons in hand to the defendant,” or “ left a “ summons at his last and usual place of abode.” If the Court should sustain the plea in abatement in this case, it would probably lay the foundation for hundreds of writs of error, where judgment has been rendered on default, and the returns of service were not more descriptive and definite than that in the present case. For the reasons we have given, we are all of opinion that the return is an estoppel upon the defendant; —■ and we adjudge the

Plea in abatement insufficient.