Slayton v. Inhabitants of Chester , 4 Mass. 478 ( 1808 )

*The defendants joined in demurrer. And the opin- [*479 ' ion of the Court was delivered by

Parsons, C. J.

In this action, the defendants pray judgment it they ought to be held to answer the plaintiff’s writ, because the? say that a copy of it was not left with the clerk, or with one of the principal inhabitants of the town, wherefore they pray judgment of the writ, that it may be quashed. To this plea in abatement there is a demurrer for cause; and one of the causes is, that it appears from the return endorsed on the writ, that a copy of it was left with one of the principal inhabitants of Chester, and that the defendants are estopped from denying it. And this demurrer has been joined.

Bliss for the plaintiff. Ashmun for the defendants.

It is very clear that when a writ appears by the return endorsed by the officer to have been legally served, that the defendant cannot plead in abatement of the writ, by alleging matter repugnant to the return: if the return be false, his remedy is by an action for a false return against the officer.

But it is objected that the return is no part of the plaintiff’s demurrer, and that the Court cannot, ex officio, take notice of it. Regularly the plaintiff ought to have prayed oyer of the return before he demurred, and then no doubt could have arisen upon the plea, as it would, without question, have been bad. If the estoppel had been by matter of record in another court, or in another cause in this Court, the objection must have prevailed. But as the record relied on as an estoppel is a return on thezsame writ, against which the plea is pleaded, we are satisfied that we can, ex officio, take notice of it, as, in fact, if we read the writ, we cannot avoid noticing the return, unless we wilfully shut our eyes; for it of course is written on the same page which contains the endorsement of the writ by the plaintiff, and which is a part of it. As we notice the return, the plaintiff is estopped from making the allegation of want of service, and the plea must be holden bad, and an interlocutory judgment be entered, that the defendant answer further.

Let the clerk enter the judgment specially after this form: “ Whereupon the Court here having inspected the same writ, and the return endorsed thereon by Newcomb Cleveland, a deputy sheriff, to whom the writ is directed; which return is in the [ * 480 ] words following, [here let the return be inserted,] it * appears to the Court that the same plea, and the matters therein contained, are bad, and insufficient in law to abate the said writ; it is therefore considered,” &c., [in the usual form of a respondeos ouster.]