Tilton v. Parker

Richardson, C. J. We have attentively considered the motion, which has been made in this ease, and shall now proceed to express the opinion we have formed. It is very clear that these defendants cannot be held against their will to answer to this writ, unless a legal service has been made upon both, or a sufficient reason shown in the officer’s return, why such a service has not been made. 5 Mass. Rep. 193, Tappan v. Bruen. And we entertain no doubt that it is competent to-the court in its discretion to quash the writ on motion for defect of service, or to put the defendants to plead the matter in abatement. 5 Mass. Rep. 100, Bullard v. The Nantucket Bank; 10 Mass. Rep. 343, Tingley v. Bateman; 8 Mass. Rep. 423, Call v. Hagger ; 3 ditto 223, Andrews v. Bosworth; 5 Mass. Rep. 100. The defendant, Parker, is stated in the writ of review to be of Boston iii Massachusetts, and it is provided by the statute of February 9, 1791, sec. 14, “that where, any party shall he desirous of reviewing any action and the other party shall not he an inhabitant of this state, the writ may be served upon the agent or attorney, who indorsed the original writ, if such absent party was originally plaintiff; or in case such party was originally defendant then on the attorney who appeared for said defendant at the trial, &c. or shall cause a copy of the review to be served on the adverse party, though out of the state and affidavit thereof made.” 1 N. H. Laws 103 [144] It is therefore apparent that a legal service of the writ so far as respects Parker under this statute is returned by the officer. But the defendant, Melville, is stated in the writ of review to be of Jaffrey in this state ; and if this supposal of the writ be true, the statute above mentioned has no application to his case, and the service is with respect to him altogether defective. The writ should have been served upon him personally, or a copy of it should have been left at his usual place of abode. And we are clearly of opinion, that no defect in the writ or in the return can be supplied by affidavit, Melville must therefore be now considered as an inhabitant of Jaffrey. If he had in fact removed to Boston before the service was made, the writ should have been altered and have described him as late of Jaffrey, but then of Boston, and the service which is now returned, would in that case have been suf-' ficient. But as the writ now stands the service is clearly defective. This defect may however be now cured by an amendment of the writ in this respect, and the case of Hearsay v. Bradbury, 9 Mass. Rep. 95, is in principle an authority showing that leave to make such an amendment may with propriety be granted. But if the plaintiff make this amendment it must be upon terms that he pay the costs of the two last terms and the defendants be at liberty to plead in abatement of the writ, if they choose, that Melville was at the time of the service of the writ an inhabitant of this state. Writ quashed.