Rowan v. Judge , 7 Port. 171 ( 1838 )

COLLIER, C. J.

— All the points made in this case, have been decided against the plaintiff in error, by the opinion delivered at the present term, in Searcy & Fearn vs Thompson, judge, &c., except that which relates to the insufficiency of the service of process upon the plaintiff. On the original process, the record informs us, were the following endorsements:

“ Service acknowledged, 15th August, 1836.

“ M. M. Rowan.”

“ Received, ,15th August, 1836.

“D. B. Turner, sheriff.”

And “ Service acknowledged by defendant.

“ D. B. Turner, sheriff.”

Whether the acknowledgment of service certified by the sheriff, be that to which the name of the plaintiff is subscribed, or whether it relate to some verbal acknowledgment made thereafter, we are not informed, but will intend it to have been made to the sheriff, at a time when the> writ was in his hands for service. The statute, in regard to the execution of original process, is as follows :

“ It shall not be necessary, that any declaration, or copy thereof, accompany such writ of process, but a copy of such writ shall be left with the defendant at the time of serving, and by the officer serving the same, &c.” — Aik. Dig. 278.

This act, it is argued for the plaintiff in error, excludes every other mode of executing original process that it expressly provides for, that it may be likened to the law which authorises a judge to take the acknowledgment or probate of deeds, and must be interpreted according to its letter. It is true, that this court decided that the statute upon the latter subject, did not authorise a court acting judicially, to take the acknowledgment of a deed, though its judge or clerk had authority, as an independent ministerial act, to take such acknowledgment—Munn & Griffin vs Lewis, (2 Porter’s R. 24.)

The analogy between that case and the one before us, in our opinion, will not hold good. In regard to the acknowledgment or probate of deeds, the judge and clerk derive their entire authority over the subject, from a legislative act, and according to a well settled rule applying to such cases, the mode which the statute prescribes for the execution of the power it confers, must be followed. But the sheriff is an officer known to the common law, possessing extensive authority, and held to a strict accountability for its abuse. He was required to execute process according to its mandate, — the same duty is enjoined on him here; unless the law has pointed' out a different manner of execution. This has been done in regard to the capias ad respondendum, (which is the original process usually employed with us,) though it directs the caption and detention of defendant’s body, yet it is regarded by the law, merely as a summons, unless by an endorsement thereon, bail is required. The object of the statute, in directing the sheriff to furnish the defendant with a copy of the writ, was doubtless to advise him of the complaint to which he was required to answer, and being intended for his benefit only, it was surely competent for him to dispense with it.

If the sheriff makes a false return, he is always liable to the action of the party aggrieved, and the difficulty of falsifying his return, would be no greater, where he returns “service acknowledged,” than where he returns “ executed, by leaving a copy with the defendant.” In either case, it would be great, unless it could be shewn that the defendant was not in the county at the time the process was in the sheriff’s hands.

Considering the common law powers possessed by a sheriff at the time the act we have cited, was enacted, the manner it provides for serving process does not, in our opinion, exclude every other mode of execution, as agreeable to the defendant, and as beneficial to the plaintiff. The return of the sheriff must be accredited, and the plaintiff in error be taken to have had due notice of the pendency of the action against him—Welch vs Walker, et ux, (4 Porter’s R. 120.)

The judgment is therefore affirmed.