Swetland v. Stevens

The opinion of the court was delivered by Collameb, J. — The statute provides, tyhen goods and chattels are attached, “ a copy of said attachment and a list of the articles attached, attested by the officer serving the same, shall be delivered to the party whose goods and chattels are so attached, or left at the house of his, her or their usual abode, as is directed in service of summons.” As to the service of summons, it is provided, that a true and attested copy thereof, with the officer’s return, shall be delivered to the defendant, or left at the house of his usual abode, with some person of sufficient discretion, or in such situation as the defendant will probably receive it-; and “ the manner of such service shall be particularly expressed in the return made by the officer.” Two things are fully provided by this statute ; first, the mode of service— and secondly, the mode of return. The present is a plea in abatement for an insufficient return. This court have, on several occasions, very fully expressed an opinion, that the return must show a legal service to have been made, or the writ would abate; and that delivering or leaving a copy is an essential part of the service in the attachment of goods, being the only mode provided for giving notice to the defendant, and without this the service is essentially defective. This plea is therefore not a pleading of the evidence instead of the fact, and therefore argumentative, as the plaintiff’s counsel insists ; for it is a plea in abatement for, defective return, and so directly alleges, and not for defect in service. If there can be any excuse for not leaving a copy, which does not appear by the return, the plaintiff might here have replied it. — Marvin vs. Wilkins, 1 Aik. Rep. 107 — Newton vs. Adams, 4 Vt. Rep, 437. Judgment affirmed.