Stoddard v. Tarbell
20 Vt. 321
Vt.
1848
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The opinion of the court was delivered by

Hall, J.

It is well settled in England, that a sheriff cannot excuse himself from the service of process, because it is erroneous, or irregular ; but that he is bound to execute it, unless it is absolutely void. The same doctrine is the law of this state. Bank of Whitehall v. Pettes, 13 Vt. 395. It is not, indeed, denied by the counsel for the defendant; but it is insisted, that the writ in this case was absolutely void. It seems difficult to maintain this proposition. The writ was in all respects regular on its face. It was apparently properly signed, properly directed, and properly returnable, and the court had jurisdiction of the subject matter and of the parties. If it were in any manner defective, the defect arose from something dehors the writ, — something which must be made to appear by plea and evidence. The writ would have been a perfect protection to the officer, in any legal service he might make of it; and that, upon the authorities, seems to be all the inquiry he is allowed to institute in regard *325to it. There is no reason, why he should be permitted to defeat the operation of a process, by refusing to serve it for a supposed defect, which the defendant in the process might choose to waive. His business is to execute the process, not defend against it; and if he is protected against the execution of it, it is all that he can reasonably demand.

The questions, therefore, whether the alteration of the writ rendered the recognizance for costs inoperative, whether a writ, made of one which had been previously served, or the bringing, or even the pendency, of a previous suit for the same cause, might be made use of to defeat the process committed to the officer for service, would seem to be matters for the determination of the court, to which the process was returnable, and not for the decision of the officer. The defendant in the process might waive them all; and if he did, it should not be in the power of the officer to insist upon them.

It is unnecessary for us to consider, what would have been the effect of the matters shown in this case upon the process, if they had been properly pleaded in the county court by the defendant in the writ. The right of a plaintiff to discontinue a suit before the return day of the writ has been recognized by this court. The proper mode of proceeding in such cases would doubtless be, to leave the old writ in existence and to make a new one. All that we now decide is, that the officer, who is called upon to serve the second writ, cannot make the objection, that it is the old writ altered. Whether the fact of the alteration would have availed the defendant in the suit, by way of abatement, is perhaps a different question.

The judgment of the county court is affirmed.