Polhemus v. Perkins , 15 N.J.L. 435 ( 1836 )

By the Court.

The statute, Rev. Laws,. 630, s, 6, directs that if the defendant is not found, the summons' shall be served by leaving a copy thereof at his house, or .place of abode, in presence of some free person of the family, of the age of fourteen years, who shall be informed of the contents thereof. The Constable in this case, has returned that he served the summons, “ by reading it to a white person, over the age of fourteen, and left a copy with her at the place of abode.”

This return did not warrant the Justice to proceed in the absence of the defendant. It is only when the defendant is not found, that a service by leaving a copy at his house, is sufficient. The Constable ought therefore to'certify, if the fact was so, that the defendant was not found by him, so as to be personally served with the summons. That would alone legalize the secondary mode of service. Otherwise a Constable might pass a defendant in the street, or at his very door yard, and instead of serving the summons upon him, proceed to his house and leave a copy there. Or the defendant may be at home and yet the officer, without even inquiring for him, may content himself with leaving a copy with some person at his door. The law contemplates and requiz-es a personal notice to the defendant, when the officer can find hizn, in the exercise of ordinary and reasonable diligence; and only substitutes a secondary kind of notice in ease the defendant is not found. The officer is not bound, to ransack the county. He may go directly to the defendant’s house, or usual place of abode, and if upon inquiry, is told the defendant is not at home, he may adopt the secondary mode of service prescribed, by the statute ; but the reason for his doing so, ought to appear upon his return of the summons. But there is another objection to the return in this case. T ie C >estable read the suznmons, and left a copy of it with a white pez’son above the age of fourteen, at “ the ” place of abode; but at whose place of abode, does not appear. Penny v. Harrison, 2 Green's R. 24.

The second error is equally fatal. The Justice states in his record, that “ the plaintiff filed his demand for thirty dollars; the defendant not appearing, the plaintiff proved his demand, and I gave judgment for the same." This is not such a judgment as the law requires. Green v. Lawrence, Harr. Penn. R. 621; Van Houten v. Beam. Id. 167. Let it be reversed and set aside on both grounds.

Judgment reversed.