Fogg v. Child & Fitzhugh

By the Court, Johnson, J. The revised statutes (2 R. S. 228, § 17,) require the constable serving a summons to return thereon in writing the time and manner in which he executed the same. There is nothing in the statute requiring negative additions in the return in cases where the summons is against several, and they cannot be necessary to give the justice jurisdiction to proceed in the case, where the return shows a good [250] service upon one. (Cowen’s Tr. 2d ed. 504.) It would certainly be convenient and useful to the justice to be informed negatively, as well as affirmatively, how the summons has been executed, in order that no mistake might be made in issuing the execution, where the judgment is against several in form. But it is not indispensable. A valid service upon one, where the suit is against several, and a proper return of the service, is sufficient to authorize the justice to proceed and render judgment in form against all. The return showing proper service upon one, shows how the process has been executed, and the requirements of the statute are complied with, without the officer’s explaining in the return how or why it was not served upon the others. The case of McDoel v. Cook, (2 Comst. 110,) relied upon by the defendants’ counsel, is not a parallel case. That was a suit commenced by attachment, and the return of the constable showed that he had attached the property of'both defendants, but was entirely silent as to any service upon one of them. The statute in such cases requires the officer in his return to state specifically whether the copy of the attachment and inventory was or was not served personally upon the defendant. If there has been no personal service, a summons is to be issued and returned before further proceedings can be had. In that case the return was held to be defective, and the judgment irregular, because the statute expressly required a more full and explicit return before the justice could properly determine whether he must issue a summons or proceed and render judgment. The objection to the return, therefore, was not well taken before the justice. Had the objection been good, the appearance of the party to make it could not be adjudged a waiver. This is well settled. Indeed it is difficult to see how any question could ever have been made in regard to it. But the admission of the declarations of the clerk of the boat, as evidence, was, I think, clearly erroneous. He should have been called as a witness. Admissions or declarations of agents are only to be received in evidence as part of the res gestee. Unless they are part of the res gestee, they are not admissible as evidence, any more than those of total strangers. Whatever [251] apparent confusion or contradiction may be found in the cases upon this Subject—and it must be conceded they are by no means free from it—it must be obvious that the principle upon which such declarations are admitted is that they are verbal acts, part and parcel of the transaction itself. (1 Gr. on Ev. § 113. Cowen & Hill’s Notes, 180, 1.) Declarations or admissions, to partake of this character, must be made during the negotiation or the progress of the business of the agency, and within the scope and bounds of the authority of the agent, and be of such a nature as to give character to the acts ; otherwise they are mere hearsay. Here the property was put on board the boat at the landing near Rochester, on the 12th of April, to be delivered at Brockville, C. W. during, that trip. The conversation with the clerk proved was some two months afterwards. It was not even proved that the person acting as clerk at the time of the conversation in June, was such in April, when the goods were shipped, except what may be inferred from the declarations of the clerk as proved. But conceding that he was the same person, it cannot be pretended that his declarations in June after-wards that he was unable to find the goods, on the arrival of the boat at Brockville some two months previous, were any part of the res gestee. It was a mere admission that the goods were not delivered and could not be found, made long after the bailment was at an end, and the liability, if there was any, for the loss, had accrued. [Cayuga General Term, June 7, 1852. Selden, T. R. Strong and Johnson, Justices.] The judgment of the county court must therefore be affirmed. Judgment affirmed.