National Bank v. Mascoma Flannel Co. , 70 N.H. 227 ( 1899 )

Whether legal service of the plaintiffs' writ could have been made upon the defendants at any time from the date thereof until the conveyance of their property, on August 12, 1899, by giving to their day watchman an attested copy, need not be determined or considered; for whatever representative capacity in respect of service of process he may have previously had as watchman or tenant ceased on that day, which was nearly two months before the expiration of the time within which the officer was entitled to complete service of the writ. P.S., c. 219, s. 1; Kendrick v. Kimball, 33 N.H. 482, 486. And, furthermore, in any view of the question, the officer's return of non est inventus concluded the parties to the process, and if false, the only remedy is by an action against him. Tandy v. Rowell, 54 N.H. 384, 387; Clough v. Monroe, 34 N.H. 381; Messer v. Bailey, 31 N.H. 9; Wendell v. Mugridge, 19 N.H. 109; Lewis v. Blair,1 N.H. 68, 70. The return, however, was not false as regards the watchman, inasmuch as it bears date of October 2, — long after he had left the defendants' employ.

The fact that the defendants had a clerk residing within the state (but in another county and more than sixty miles away) upon whom service could have been made, if not rendered immaterial by the finding that "neither the plaintiffs, nor their attorneys, nor the sheriff who made the attachments knew, or were in fault for not knowing" of his existence, is clearly made so by the return of non est inventus, as before stated. In such a case, an action may be entered without service on the defendant and continued for notice to him by publication, if an actual attachment of his property within the jurisdiction has been made. Martin v. Wiggin, 67 N.H. 196, 197; Burney v. Hodgdon, 66 N.H. 338, 339; Bancroft v. Damon, 58 N.H. 190; Thompson v. Carroll, 36 N.H. 21, 24.

Exception overruled.

YOUNG, J., did not sit: the others concurred.