Walker v. Hill , 21 Me. 481 ( 1842 )

The opinion of the Court was drawn up by

Tenney J.

— The pleadings show that Daniel P. McQuestin made service of the writ in this suit as a deputy sheriff, and that he was at the same time the owner of the note declared on. Is the service legal? The statutes of 1821, c. 93, $ 1, provide, “ that every coroner within the county for which he is appointed, shall serve all writs and precepts, where the sheriff or either of his deputies shall be a party to the same.” McQuestin was not a party to the writ; he is not named in it. “ They who make any deed and they to whom it is made are called parties to the deed.” 5 Jacob’s Law Dictionary, p. 104. A party to a writ is either plaintiff or defendant, named therein.

If the term party embraces all those who may be interested as owners, neither the sheriff nor any of his deputies could make service of the writ in this case. It has been settled however, that service made upon the President, Directors and Company of a Bank by an officer, who at the time was a stockholder therein, was sufficient; and that the writ could not have been served by a coroner, because the deputy sheriff was not a party to the suit, although interested. Adams v. Wiscasset Bank, 1 Greenl. 361. In Merchants’ Bank v. Cook, 4 Pick. 405, the Court say, “ The word party then is unquestionably a technical word, and has a precise meaning in legal parlance. By it, is understood, he or they by or against whom a suit is brought whether in law or in equity; the party, plaintiff or defendant, whether composed of one or more individuals, and whether natural or legal persons; they are parties in the writ, and parties on the record, and ail others, who may be affected by the writ indirectly or consequentially are persons interested, but not parties.” The amount of interest, whether the whole or only a part of the subject matter of the suit, cannot be the foundation of a distinction ; neither is the principle varied by the interest being on the side of one party rather than the other. Thayer v. Ray and Trustees, 17 Pick. 166 ; Simonds v. Parker, 1 Met. 514. By the Revised Statutes a person interested, as well as a party to the suit, is precluded from serving the writ. Rev. St. c. 104, $ 60. But this cannot apply to the case at bar. The foregoing views, render it unnecessary to consider whether the plea is in form correct, for however accurate, it cannot avail the defendant.

Plea had.