Thayer v. Joseph Ray & Trustees ( 1835 )

Wilde J.

delivered the opinion of the Court. The trustees plead in abatement, that at the time of the service of the writ, one of the trustees was a deputy sheriff under the sheriff of this county, and that the writ was served by another deputy of the same sheriff; whereas it ought to have been served, as they contend, by a coroner. On demurrer, the plaintiff objects in the first place to the sufficiency of the plea, because it does not appear that the trustees had in their hands, at the time of the service of the writ, any goods, effects, or credits of the principal, on which the attachment can take effect. This objection would have been good, if the trustees had pleaded in the name of the principal, as was decided in the case of Blake v. Jones, 7 Mass. R. 28. But undoubtedly the trustees, being parties, may plead in abatement in their own name, and take any exception to the validity of the service in respect to them. If there has been no legal service on them, they are not bound to answer, and are entitled to be discharged.

The next ground upon which the plaintiff relies, depends upon the construction given by his counsel to the St. 1817, c. 13, which we cannot admit. That statute authorizes sheriffs, deputy sheriffs, &c., to serve and return all writs and processes, in which towns or districts, of which they are inhabitants, are parties or interested. But this statute does not extend to school districts, for the reasons given in the case of Little v. Merrill, 10 Pick. 543. This case therefore comes within the St. 1783, c. 43, § 1, which directs, that all writs and precepts, when the sheriff or either of his deputies shall be a party to the same, shall be served by the coroner. The service on the trustees is contrary to this express direction of the statute, and cannot be held valid.

But this defective service on the trustees does not abate the writ as to the principal ; for a writ is divisible, and may be abated in part, and remain good as to the residue. There is no objection against the service on the principal, and by the St. 1798, c. 5, § 1, the court is authorized to proceed to render judgment against him, in the same manner as might be done if the action had been brought in the common and ordinary mode of process.

Writ abated as to trustees.