Hawkins v. Weightman

The opinion of the court was delivered, by

Sharswood, J.

The judgment below was entered on a return of two nihils in an action of covenant on a ground-rent deed for want of appearance. The Act of April 8th 1840, Pamph. L. 249, declares that in all such actions the “returns of two nihils shall be in all respects equivalent to actual service ” of the writ of summons, “ as is now the practice im eases of scire facias on judgments and mortgages.” “Provided, however, that it shall be the duty of the said sheriff or other officer to give notice of the said alias writ by serving a copy thereof on the tenant in possession of the premises, if any, or if there be no such tenant, by posting a copy of the same on some conspicuous part of the premises, at least ten days previous to the return-day thereof, and also by publication in one or more newspapers, in such manner and for such time as the court, by rule or otherwise, shall direct.” The return to the alias summons in this case was “ served by posting and publication, and nihil hábet as to defendant.” It is contended that this return is fatally defective in not stating on its face that there was no tenant in possession of the premises. But it being made the duty of the sheriff to serve the writ on the tenant in possession, if any, and he being authorized by the law only in case there is no such tenant, to post a copy of the writ, his return that he did so post it, is a direct affirmance that there was no such tenant, as much so as if it had been expressly stated. The tenant in possession or other party aggrieved could maintain an action gainst him for a false return. On the facts supposed, the law did not authorize him to post the writ and return a service in that way. It was, therefore, a false return. It follows that the return is sufficient on its face, and the judgment for want of appearance perfectly regular.

Judgment affirmed.