Maverick v. Duffee

GOLDTHWAITE, J. — -1. The officer serving the writ, is directed by the statute to leave a copy with the defendant^ at the [434] time of service, (Aik. Dig. 278, § 112;) but this provision was not intended to confer a right on the defendant to avoid the process, if the copy was not served. It was, in our opinion, to relieve the plaintiff from the necessity of serving a copy of the declaration. We are not aware that it has ever been held, either in England or in these States, where this practice yet obtains, that a mistake in the declaration would render the service of the writ nugatory. If injustice has been done, or an attempt is made to use the process to the injury of a suitor, it is clearly within the power, as it might be the duty, of a court, to interfere and set aside irregular process. The plea in this case, however, assumes that the law gives to the defendant a right to the service of a copy of the writ, without which, the service is nugatory and voidable. If this is so, an exact copy can be required, for it is impossible to define any limits to the right, which are not prescribed by the statute: but if the old practice of serving a copy of the declaration was alone intended tó be abrogated by this enactment, and a more convenient practice substituted, then it is very clear, that no right was conferred on the defendant, but the practice substituted must be governed by rules, similar to those which obtained previous to its alteration, 2. We are of opinion, that no irregularity in the copy of a writ, can be pleaded in abatement, and that the only mode by which advantage can be claimed, is by a motion to set aside the service for irregularity, which can be granted in the exercise of a sound discretion, if it is necessary to prevent an injury to the defendant, or to advance the justice of the cause. The Circuit Court having erred in sustaining the plea in abatement, its judgment is reversed, and the cause remanded, with instructions to sustain the demurrer.