Hibbard v. Clark ( 1874 )

Isaac W. Smith, J.

The defendant in his plea alleges that the copy of the writ “ delivered to Mm by the officer who served the writ when his the defendant’s goods and estate were attached upon said writ, is not, and when so served was not, in the form prescribed by law, in this, to wit,” &c.

It appears by the officer’s return that the defendant’s property in the hands of the trustees was attached November 19,1873, and that service was made on the defendant February 13,1874. Non constat that the copy which the officer returns that he served upon the defendant February 13, 1874, is the same copy which the defendant produces in court, and which he says was delivered to him when his property was attached, to wit, November 19, 1873. From anything that appears in the plea, the defective copy was delivered to the defendant November 19, 1873, and a correct copy February 13, 1874. The plea, which is a part of the record before us, shows that the defective copy was served November 19, 1873, while the officer’s return, which by being enrolled becomes a part of the same record, shows that on February 13, 1874, an attested copy, which means a true copy attested, was left with the defendant, and there is no contradiction in the record. The ground on which a party is permitted to contradict the return of the officer and show a want of service in the process is, that the adverse party shall not be estopped to take advantage of the truth where it appears of record. Coke Litt. 352 b ; Oomyn’s Dig., Estoppel, E 2; Lary v. Kvans, 35 N. H. 175.

The matter of abatement on which the defendant relies is not stated with the exactness and precision required in this class of pleas. Unless it is stated in the plea what the defect relied on is, so that the court is not left to discover or conjecture what ground is meant to be taken to abate the writ, the plea will be adjudged insufficient. Parker v. McKean, 34 N. H. 375.

The motion to quash the writ must be denied. The court will abate an action upon motion, only when the abatable defects are apparent upon the writ itself. Insurance Company v. Prescott, 38 N. H. 398; Tilton v. Parker, 4 N. H. 143; Crawford v. Crawford, 44 N. H. 428; Seaver v. Allen, 48 N. H. 473; Scruton v. Deming, 36 N. H. 432. There is no defect apparent upon this writ. It is not claimed that the defect is in the writ, but in the copy; besides, there is nothing in the case that shows that any reason was assigned, either in writing or verbally, why the motion should be granted, unless it is claimed that the reason is set forth in the plea. If so, it is sufficient answer to say that it is not set forth with the precision required.

Motion to quash denied. The demurrer must be allowed, and the defendant ansiver over.