Blanchard v. Day , 31 Me. 494 ( 1850 )

Siiepley, C. J., orally,

The statute c. 114, § 23, provides, that an original writ may be framed either to attach the goods or estate, and for want thereof to take the body, or it may be an original summons, either with or without an order to attach the goods or estate.

It is provided by the 24th sect, that, when the goods or estate “ are attached” on either of said writs, a separate summons “ shall be delivered to the defendant” or left at his last and usual place of abode.

In this case the writ was in the common form of a writ of attachment, with directions to summon the defendant, and it should be served by a separate summons, delivered to him or left at his last and usual place of abode.

1. It is insisted, as no property was attached, that a service should have been made according to the provisions of the 26th section, by reading the same to him, or by giving him in hand, or leaving at his last and usual place of abode, a certified copy thereof.

If the words, “ are attached,” were to receive a literal construction, the mode of service would not depend upon the form of the writ,, but upon the use which was made of it ; and, if no property could be found to be attached, that writ could not be used, but a different writ must be sued out. Such is not the true construction, as will appear by a comparison of the 23d, 24th, 25th and 26th sections. The service •' is to be made according to the form of the writ, irrespective of the úse which is made of it.

2. It is insisted that the return of the officer does not exhibit a legal service, because he states, that he “ gave him the summons for his appearance at court.”

It is a wéll established rule, that the returns of officers, being persons unlearned in the law, are not to be subjected to a severe and critical examination, to ascertain whether there is a formal and exact use of language, in conformity to the requisitions of law, but are to be regarded as sufficient, when there appears to have been a substantial compliance with such provisions.

' In this case, it is apparent that a separate summons was used for service, and not a copy. “ The summons” can only refer to such separate summons ; “ gave him the summons,” affords proof that the summons was delivered to him, and would be sufficient to enable the defendant, in the original action, to maintain an action for a false return, upon proof that it was not delivered to him.

Another objection to the service is, that it was made by a constable of the town of Augusta, upon the original defendant, described in the writ, as of the town of Belgrade.

By chap. 104, sect. 34, a constable is authorized to serve, upon any person in the town to which he belongs,” any writ or precept in a personal action, where the damages demanded do not exceed $100. It is not necessary that the person, upon whom the service is made, should be an inhabitant of the same town in which the service is made. It is sufficient that the service is made upon him in that town.

Judgment affirmed.