Gardner v. Barker
Massachusetts Supreme Judicial Court
This was an action of assumpsit, originally commenced in the Court of Common Pleas for the county of Nantucket, whence it came to this Court by appeal. In the writ, the defendant is named of the city of New York, and the plaintiff and the supposed trustees are called of Nantucket. * The sheriff returned [ * 37] a service on all the trustees, and also on Benjamin Whitman, Esq., as the agent of Barker, the principal defendant.
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This was an action of assumpsit, originally commenced in the Court of Common Pleas for the county of Nantucket, whence it came to this Court by appeal. In the writ, the defendant is named of the city of New York, and the plaintiff and the supposed trustees are called of Nantucket. * The sheriff returned [ * 37] a service on all the trustees, and also on Benjamin Whitman, Esq., as the agent of Barker, the principal defendant. At the first term of the Common Pleas, the defendant pleaded, in abatement of the writ, “ that the several supposed trustees are not, and never were, the trustees of the…
1Opinion of the CourtJackson, J.
Two questions have been argued in this case , first, whether there has been such a service of the original writ as will hold the defendant to answer to the suit ; and, secondly, if not, whether the defect sufficiently appears by the pleadings and the other parts of this record.
As to the first, the defendant is not an inhabitant of this State, and there has been no actual service on him. The writ was served on Benjamin Whitman, Esq., as his agent; but such service is not sufficient in this case, unless some estate or effects of the defendant were attached. When an absent debtor has property…
2Cases cited5 opinions
- Tingley v. BatemanMassachusetts Supreme Judicial Court · 1813
- Jacobs v. MellenMassachusetts Supreme Judicial Court · 1817
- Gage v. GannetMassachusetts Supreme Judicial Court · 1813
- Inhabitants of Lincoln v. PrinceMassachusetts Supreme Judicial Court · 1807
- Homer v. WhitmanMassachusetts Supreme Judicial Court · 1818
3Cited by13 opinions
- Picquet v. SwanU.S. Circuit Court for the District of Massachusetts · 1828
- Tingley v. BatemanMassachusetts Supreme Judicial Court · 1813
- Brigham v. EvelethMassachusetts Supreme Judicial Court · 1813
- Wilby v. PhinneyMassachusetts Supreme Judicial Court · 1818
- Jacobs v. MellenMassachusetts Supreme Judicial Court · 1817
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