Farley v. Day

Gilchrist, C. J. The writ in this case was returnable before a justice of,the peace, and the service was by attachment of the real estate of the defendant. This point was settled by this court in the case of Everett v. Evans, decided [531] in the county of Grafton, at the December term, 1848. A justice writ was served by an attachment of the real estate of the defendant, and the justice decided that it should be quashed; and upon the question being transferred to this court it was held that there had been no legal service of the writ, and judgment was rendered for the defendant. In the present case, the ruling of the court upon this point was erroneous. Where there has been no legal service of a writ, the defect may be taken advantage of upon a motion to quash it. But that does not render it a matter of discretion with the court whether they shall apply the principles of law to the motion, or not, but the law is their rule of conduct, in this as in other cases. In all cases where real or personal estate is attached, there must be a service upon the defendant in some way prescribed by law. Jones v. Smith, 3 N. H. Rep. 108. It is true, as contended in the argument of the plaintiff, that the court will not. revise the merits of a question whose determination depends upon the discretion of the court, but the present case is not one of that class. To show that this is a proper case for the exercise of the discretion of this court, the counsel refers to the case of Tilton v. Parker, 4 N. H. Rep. 142. That case, however, merely decides that it is competent for 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. Upon the second point, the court ruled, in substance, that if an indorser of a writ is a resident in this State, and legally competent to bind himself by an indorsement, his pecuniary ability is not to be inquired into. The law provides that if the plaintiff is not an inhabitant of the State, the writ shall be indorsed by some responsible person who is such inhabitant. Rev. Stat. chap. 183 § 17. It would seem that the meaning of the word “ responsible” could not admit of any doubt, in this connection. Strictly speaking, the word means “ liable, answerable,” rather than “ able to discharge an obligation;” but the latter [532] js very clearly the sense in which it is used in the statute. In the case of Williams v. Hadley, 19 Pick. 379, the plaintiff was insolvent, and the court of common pleas, on motion by the defendant, ordered the plaintiff to procure a responsible indorser of his writ. The Rev. Stat. of Mass, chap, 90 .§ 10, provides that if the plaintiff removes out of the State, pending the action, he' shall be required to procure a responsible indorser. It was held that the court had power to require an indorser whenever it should appear to them reasonable. This decision tends to show what construction was put by the court upon the word “ responsible. In the case of Feneley v. Mahoney, 21 Pick. 212, the defendant moved that the plaintiff be required to furnish a sufficient indorser of the writ, on the ground that he was poor and irresponsible in point of property. Shaw, C. J., said “ the obvious intent of the legislature was to indicate as a general rule that a plaintiff within the State should have liberty to sue without giving security for costs, but if not within the reach of the process of the court, or if he should depart from it, such security should be required. * * It is the obvious general policy of the legislature to permit a plaintiff, though poor, and apparently insolvent, to sue for his rights so long as he is an inhabitant of the Commonwealth, and within its jurisdiction.” We think that the legislature meant by the words “ responsible person,” a person who is able to pay the costs which, by his indorsement, he became liable to pay, in the event of the plaintiff’s failure in his suit, and that the ruling of the court below was erroneous, and this opinion is to be certified to the court of common pleas.