Bennet v. Fuller
New York Supreme Court
A MOTION was made in behalf of the defendant, to set aside the proceedings in this cause, for irregularity, on an affidavit, that the defendant was never arrested. The plaintiff was a deputy of the sheriff of the county of Delaware. In his affidavit, he swore that he did arrest the defendant, and explained to him the nature of the writ; dhat he served the writ himself, as a deputy-sheriff, but did not require any bail.
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A MOTION was made in behalf of the defendant, to set aside the proceedings in this cause, for irregularity, on an affidavit, that the defendant was never arrested. The plaintiff was a deputy of the sheriff of the county of Delaware. In his affidavit, he swore that he did arrest the defendant, and explained to him the nature of the writ; dhat he served the writ himself, as a deputy-sheriff, but did not require any bail. An interlocutory judgment for want of plea, was entered for the plaintiff, and a writ of inquiry of damages executed.
1Per curiam
The question is, whether there has been a legal service of this writ. It appears, from some of the cases, (Cro. Car. 416. 19 Viner, 443. note. Moore, 547.) to be a doubtful question, whether a sheriff can legally serve a writ where he is the plaintiff. In the present case, the writ was served by a deputy. No bail was required, and the sheriff returned the writ, and is responsible. As the practice of deputing the plaintiff to serve his own writ has been of long duration, we think it would be going too far to say, that the plaintiff cannot, in any cause, Serve a writ in his own favour. A *487declara…
2Cited by5 opinions
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