Bank v. Perdriaux

1 Brightly 67

Opinion

Sergeant, J.

— I do not see how the court can refuse to set aside the service of this writ. The act commands that a true and attested copy shall be served. This language is too plain to be misunderstood. The sheriff has not conformed to the directions of the act. The evils of a loose practice in the service of writs are innumerable, and should be guarded against. This motion seems to have been made as early as practicable. If the appearance had not been entered, the defendants might have encountered other difficulties. An affidavit of defence was filed by only one defendant. The others cannot be prejudiced by this act. Rule absolute.

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The practice in this state is, on motion to the court, at the instance of the defendant, to set aside a sheriff’s return, when the writ is defectively served. The defendant may enter an appearance de bene esse, and ask the judgment of the court as to the legality of the service. But this does not extend further than to set aside the sheriff’s return. The writ remains good, and the plaintiff may either discontinue his suit, at his election, rule the sheriff to make a good return, and issue an alias, or sue the sheriff for a false or insufficient return. Winrow v. Raymond, 4 Barr 501. A summons cannot be served by leaving a copy at the counting-house of the defendant. Ibid.