Morgan v. Joyce

Chase, J. By employing the attorney to bring and prosecute • the action, the plaintiff authorized him to give directions for service of the writ. Alton v. Gilmanton, 2 N. H. 520; Miner v. Smith, 6 N. H. 219; Hanson v. Hoitt, 14 N. H. 56; Stevens v. Colby, 46 N. H. 163. The plaintiff is not in a position to object to the character of the evidence of service on the trustee. He has not been injured by the absence of a formal return of service. The only reason why a formal return may not now be made and put in evidence is because the writ is in the possession of the plaintiff’s attorney. The plaintiff cannot withhold the writ and thereby deprive the defendant of the means of showing service by, primary evidence, and still be allowed to insist that secondary evidence • is incompetent. Under the circumstances, oral testimony was competent to show compliance with the attorney’s order. See, also, Smith v. Moore, 17 N. H. 380. Judgment for the defendant. Carpenter, J., did not sit: the others concurred.