McNeice v. Weed

The opinion of the court was delivered by Barrett, J. The return shows all that was necessary to be done, to constitute effectual service, unless the giving of a copy of [730] the writ was necessary as part of the service. The law does not require that to be done in the first instance, as in the case of attaching personal property. The service is made of writs against the body by arresting the body and exhibiting the process, and that constitutes full service, so far as either plaintiff or defendant is concerned, for every purpose of such service, unless the defendant requires a copy. The duty of furnishing it on such requirement is wholly a matter between the officer and the defendant; and whether furnished or not, does not affect the right of the plaintiff to prosecute and maintain his suit. The consequence of not giving the copy is prescribed in sec. 23, c. 43, Gen. Sts., making it a condition precedent to the duty, that the party requesting shall pay the lawful fee for it. McMahan v. Edgerton, 34 Vt. 77. For substance, therefore, the plea cannot be upheld. It is defective in several respects, under technical rules which are controlling over such pleas, as is obvious on inspection. Prominent is the omission to allege any time of the alleged request for a copy. The absque hoe is made to perform an office not designed for it by the law, and in the performance of that office, begets the fault of duplicity, or a double averment of a material fact, viz., that the defendant required of the officer a copy of the writ. Further or more minute criticism would not be useful. Judgment affirmed.