Hearsey v. Bradbury
Massachusetts Supreme Judicial Court
The original writ in this case, which was a personal action, was directed to the sheriff or his deputy. The ad damnum being under 70 dollars, the writ was served and returned by a constable, although not directed to him. At the return term in the court below, Howard, for the defendant, moved the court to abate the writ, ex officio, for want of legal service.
1Opinion of the Court
Sewall, J., and Parker, J.
The constable had authority by law to serve the writ. The defendant appeared. * It was but matter of form, and the court below were justified in granting the amendment, by which the defect is cured.
Thatcher, J.
The writ not being directed to the constable, he had no authority to serve it. The appearance of the defendant was only to take advantage of the defect, and ought not to prejudice him. (a)
Motion overruled.
[In Campbell vs. Styles, (post.217,) (Wood vs. Ross, 11 Mass. Rep.276,) the Court seemed to consider the direction to the officer as essential to his…
2Cited by22 opinions
- Upper Mississippi Transportation Co. v. WhittakerWisconsin Supreme Court · 1862
- Aldrich v. E. W. Blatchford & Co.Massachusetts Supreme Judicial Court · 1900
- Neszery v. BeardMassachusetts Supreme Judicial Court · 1917
- Wood v. RossMassachusetts Supreme Judicial Court · 1814
- Converse v. Damariscotta BankSupreme Judicial Court of Maine · 1839
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