Hosmer, Ch. J.
The question first occurring, is, whether the plaintiff's declaration avers, that the writ was legally directed to the defendant, and that a lawful judgment was rendered thereon.
It is a maxim in pleading, if the words are equivocal, that they shall be construed most strongly against the party using them. Co. Litt. 303. b. 1 Wms. Sound. 259. n. 8. Dovaston v. Payne, 2 H. Black. 530. This, however, is not an isolated rule, but must be construed in harmony with other well settled principles. It means no more than this; that when the intendment of words cannot be ascertained, by the admitted rules of construction, and there still remains an ambiguity, that then, against the party pleading, the exposition must be unfavourable. But as the plainest expressions, under the influence of refined and subtle criticisms, may sometimes be the subject of doubt; and as the principle is well established, that the language of the pleader must have a reasonable intendment and construction ; to remove ambiguity, an auxiliary rule has been adopted. It is this, that when an expression is capable of different meanings, that shall be taken, which will support the declaration or plea, and not that which would defeat it. 1 Chitt. Plead. 342. Hyat v. Aland, 1 Salk. 325. King v. Stevens & Agnew, 5 East, 244. The same principle is familiarly applied in the construction of agreements, in order to render the transaction of the parties effectual. King v. Stevens & Agnew, 5 East, 244. Pugh & ux. v. Duke of Leeds, 2 Cowp. 714. Burr. Sett. Ca. 719. Caldecott, 19. King v. Cartwright, 4 Term Rep. 490.
Understanding, then, the words of the pleader in that sense which is effectual to support his declaration, and in which it is a rational supposition, that he intended to use them ; when he avers, that a writ was directed, the construction undoubtedly is, that it was legally directed ; and when he declares, that a judgment was rendered, the fair intendment is, that it was legally rendered.
On the same principle, it is, that necessary circumstances implied by law, need not be expressed. If it be averred, that a person was infeoffed, livery and attornment are implied; or that land was assigned in dower, that it was lawfully assigned by metes and bounds. And yet it is obvious, that the feoffment may have been made without attornment or livery, and the dow[138]*138er assigned without specific boundaries. This principle has been illustrated and applied, in many cases, which it would be superfluous to mention. 1 Chitt. Plead. 227. Co. Litt. 78. b. 2 Wms. Saund. 305. a. n. 13. The decisions alluded to, are put as instances of good pleading, and repeatedly have been sanctioned. In like manner, ut res magis valeal, and in conformity with reason and good sense, the averment, that a writ was directed to an indifferent person, and a judgment recovered, must be intended to mean a legal direction and a lawful judgment.
From the books of entries, the depositories of correct pleadings, it appears to be a common allegation, that a writ was directed to the sheriff, or that a judgment was rendered, without prefixing the word lawfully, or annexing any further description. 2 Chill. Plead. 162. 3 Chitt. Plead. 300. 302. 303.
No doubt can be entertained, that the plaintiff’s declaration was sufficient to withstand a demurrer; and that he has done what it was necessary he should do ; and that is, he has averred, that the writ was lawfully directed to the defendant, as an indifferent person, and that a lawful judgment was rendered upon it.
Did the testimony offered sustain this allegation ?
The writ in question was directed to the defendant, as an indifferent person; and the justice who administered the preliminary oath, certified in the following terms : “ Personally appeared Samuel Weed, and made solemn oath, that he verily believed the plaintiff to be in danger of losing the within described debt, unless an indifferent person be deputed for the immediate service of the writ.”
The law requires, if a sheriff or constable cannot be obtained to serve process, that before the direction of it to an indifferent person, an affidavit, in certain prescribed words, shall be made, by the plaintiff, or his agent, and the same shall be certified on the writ. Stat. p. 35.
Certain positions relating to this subject, are perfectly incontrovertible.
The certificate of the justice, regarding the administration of the oath, is the only source of evidence to which the court can recur. From this it must appear, at least by reasonable construction of the words of it, and not from conjecture, presumption or any thing de hors, that the prerequisites of the law have been complied with. Stanton v. Button, 2 Conn. Rep. 527. The oath must be administered, in the prescribed words of the [139]*139law, and notin what the justice may, perhaps, very erroneously, consider equivalent expressions; and from his certificate this must appear. It likewise must appear, that the person making affidavit, was the plaintiff in the suit or his agent. The service of writs, in general, is required to be made by a known public officer ; and it is no unwarrantable inference, that the protection and security of the citizen are interested in the prevention of any unnecessary departure from this principle. The plaintiff’s declaration, if the facts are stated truly, is an illustration and proof of this position. The direction of a writ to an indifferent person, is an exception from the general rule; and all exceptions from the common principle are to receive a strict construction.
To the direction of the writ in question, there are two decisive objections. In the first place, the oath was administered to Samuel Weed, who certainly was not the plaintiff in the suit; nor is it said, that he was his agent. He was a stranger, incapable of making a legal affidavit. The law is peremptory, that the oath shall be made, by the plaintiff, or his agent; and he was neither. It cannot be presumed, as there is nothing from which a presumption can be made, that he was authorized by the plaintiff; unless we admit, to aid the justice’s certificate, that all mankind were his agents : for every man in the community, from the nature of the case, is equally within the scope of this liberal conjecture.
There is a second objection precisely as fatal to the legality of the direction. The justice has not certified, that he administered the oath prescribed by law; but that the deponent swore to something, which the justice considered of the same import.
The direction of the writ not being legal, the indifferent person was, in no sense, an officer, nor invested with authority to make service. There being no service, nor even possibility of it, under the illegal direction, the judgment of the court was extra-judicial and void. The jurisdiction of a court, if it extend to the parties and subject matter, when legally before them, can never be called into exercise, unless through the medium of a process, complete in law, and duly served ; or in other words, the court must first have cognizance of the process, before it can do any legal act in the cause. Grumon v. Raymond
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Hosmer, Ch. J.
The question first occurring, is, whether the plaintiff's declaration avers, that the writ was legally directed to the defendant, and that a lawful judgment was rendered thereon.
It is a maxim in pleading, if the words are equivocal, that they shall be construed most strongly against the party using them. Co. Litt. 303. b. 1 Wms. Sound. 259. n. 8. Dovaston v. Payne, 2 H. Black. 530. This, however, is not an isolated rule, but must be construed in harmony with other well settled principles. It means no more than this; that when the intendment of words cannot be ascertained, by the admitted rules of construction, and there still remains an ambiguity, that then, against the party pleading, the exposition must be unfavourable. But as the plainest expressions, under the influence of refined and subtle criticisms, may sometimes be the subject of doubt; and as the principle is well established, that the language of the pleader must have a reasonable intendment and construction ; to remove ambiguity, an auxiliary rule has been adopted. It is this, that when an expression is capable of different meanings, that shall be taken, which will support the declaration or plea, and not that which would defeat it. 1 Chitt. Plead. 342. Hyat v. Aland, 1 Salk. 325. King v. Stevens & Agnew, 5 East, 244. The same principle is familiarly applied in the construction of agreements, in order to render the transaction of the parties effectual. King v. Stevens & Agnew, 5 East, 244. Pugh & ux. v. Duke of Leeds, 2 Cowp. 714. Burr. Sett. Ca. 719. Caldecott, 19. King v. Cartwright, 4 Term Rep. 490.
Understanding, then, the words of the pleader in that sense which is effectual to support his declaration, and in which it is a rational supposition, that he intended to use them ; when he avers, that a writ was directed, the construction undoubtedly is, that it was legally directed ; and when he declares, that a judgment was rendered, the fair intendment is, that it was legally rendered.
On the same principle, it is, that necessary circumstances implied by law, need not be expressed. If it be averred, that a person was infeoffed, livery and attornment are implied; or that land was assigned in dower, that it was lawfully assigned by metes and bounds. And yet it is obvious, that the feoffment may have been made without attornment or livery, and the dow[138]*138er assigned without specific boundaries. This principle has been illustrated and applied, in many cases, which it would be superfluous to mention. 1 Chitt. Plead. 227. Co. Litt. 78. b. 2 Wms. Saund. 305. a. n. 13. The decisions alluded to, are put as instances of good pleading, and repeatedly have been sanctioned. In like manner, ut res magis valeal, and in conformity with reason and good sense, the averment, that a writ was directed to an indifferent person, and a judgment recovered, must be intended to mean a legal direction and a lawful judgment.
From the books of entries, the depositories of correct pleadings, it appears to be a common allegation, that a writ was directed to the sheriff, or that a judgment was rendered, without prefixing the word lawfully, or annexing any further description. 2 Chill. Plead. 162. 3 Chitt. Plead. 300. 302. 303.
No doubt can be entertained, that the plaintiff’s declaration was sufficient to withstand a demurrer; and that he has done what it was necessary he should do ; and that is, he has averred, that the writ was lawfully directed to the defendant, as an indifferent person, and that a lawful judgment was rendered upon it.
Did the testimony offered sustain this allegation ?
The writ in question was directed to the defendant, as an indifferent person; and the justice who administered the preliminary oath, certified in the following terms : “ Personally appeared Samuel Weed, and made solemn oath, that he verily believed the plaintiff to be in danger of losing the within described debt, unless an indifferent person be deputed for the immediate service of the writ.”
The law requires, if a sheriff or constable cannot be obtained to serve process, that before the direction of it to an indifferent person, an affidavit, in certain prescribed words, shall be made, by the plaintiff, or his agent, and the same shall be certified on the writ. Stat. p. 35.
Certain positions relating to this subject, are perfectly incontrovertible.
The certificate of the justice, regarding the administration of the oath, is the only source of evidence to which the court can recur. From this it must appear, at least by reasonable construction of the words of it, and not from conjecture, presumption or any thing de hors, that the prerequisites of the law have been complied with. Stanton v. Button, 2 Conn. Rep. 527. The oath must be administered, in the prescribed words of the [139]*139law, and notin what the justice may, perhaps, very erroneously, consider equivalent expressions; and from his certificate this must appear. It likewise must appear, that the person making affidavit, was the plaintiff in the suit or his agent. The service of writs, in general, is required to be made by a known public officer ; and it is no unwarrantable inference, that the protection and security of the citizen are interested in the prevention of any unnecessary departure from this principle. The plaintiff’s declaration, if the facts are stated truly, is an illustration and proof of this position. The direction of a writ to an indifferent person, is an exception from the general rule; and all exceptions from the common principle are to receive a strict construction.
To the direction of the writ in question, there are two decisive objections. In the first place, the oath was administered to Samuel Weed, who certainly was not the plaintiff in the suit; nor is it said, that he was his agent. He was a stranger, incapable of making a legal affidavit. The law is peremptory, that the oath shall be made, by the plaintiff, or his agent; and he was neither. It cannot be presumed, as there is nothing from which a presumption can be made, that he was authorized by the plaintiff; unless we admit, to aid the justice’s certificate, that all mankind were his agents : for every man in the community, from the nature of the case, is equally within the scope of this liberal conjecture.
There is a second objection precisely as fatal to the legality of the direction. The justice has not certified, that he administered the oath prescribed by law; but that the deponent swore to something, which the justice considered of the same import.
The direction of the writ not being legal, the indifferent person was, in no sense, an officer, nor invested with authority to make service. There being no service, nor even possibility of it, under the illegal direction, the judgment of the court was extra-judicial and void. The jurisdiction of a court, if it extend to the parties and subject matter, when legally before them, can never be called into exercise, unless through the medium of a process, complete in law, and duly served ; or in other words, the court must first have cognizance of the process, before it can do any legal act in the cause. Grumon v. Raymond & al. 1 Conn. Rep. 40. Between a writ not duly directed to an indifferent person, and one that has no direction in fact, there is no legal difference.
[140]*140It results, most clearly, that the evidence offered, of a writ not lawfully directed, of a judgment in fact only, and not in law, did not sustain the averment, that a writ was legally directed, or that a judgment was legally rendered; and for this reason, it was correctly repelled.
The plaintiff has contended, that it is too late for the court to act upon the objections to the writ and judgment, which have been discussed.
He first insists, that the only remedy for the unauthorized direction of the writ, was by plea of abatement; and to sustain this position, he relies on the words of the statute, p. 35., that, " if any writ &c. shall be directed to an indifferent person, except in the cases and under the regulations above mentioned, it shall abate.” The law, most manifestly, has been misconceived, by the confounding of two expressions of very different meaning. It is not said, that the defendant shall take his redress by plea of abatement, but that the writ shall abate. This is a generic term, derived from the French word abattre, and signifies to quash, beat down, or destroy. 3 Black. Com. 168. The modes of abatement are various ; but the thing is simple and uniform. A plea of abatement is one mode of quashing a writ; but it is not the only one. Sometimes it is the duty of the court to abate the writ ex officio ; and the instances where this is the legal and proper remedy, are numerous. Where a writ is a nullity, so that judgment thereon would be incurably erroneous, it is the facto abated. Earl of Clanrickard’s case, Hob. 280. Case of Fines, 3 Rep. 85. Hughson v. Webb, Cro. Eliz. 121. Cooke v. Gibbs, 2 Mass. Rep. 193. Wood v. Ross, 11 Mass. Rep. 271. And even the explicit admission of its validity by the party, never concludes the court. In the case before us, it never could have been the intention of the legislature, to suspend the remedy on a plea of abatement, but to enjoin on the Court, that a writ, incomplete, without direction to a person who could serve it, and attended with a defect, palpable, fatal and unamendable, should be quashed. Eno v. Frisbie, 5 Day, 127. When they declared, that such writ shall abate, the term was used in its most comprehensive sense, not prescribing a mode, but commanding the thing, in a manner the most absolute and imperious.
If, however, the law had prescribed, that the writ should be dismissed, on plea of abatement, it would have made no difference in the case. The prescription of one mode of redress [141]*141where the common law gives another remedy, does not operate a repeal of the common law, if there is no inconsistency between them; but they shall both have a concurrent efficacy. Dr. Foster’s case, 11 Rep. 63. 1 Black. Com. 89. The common law must be negatived, by the statute, or the matter must be so clearly repugnant, as to imply a negative, in order to effect a repeal of it.
The result on this part of the argument, is, that the statute has not required a plea of abatement in the case supposed ; and if it had, it would not take away the common law remedy.
It has been said, the defendant is estopped to deny, that the writ was legally directed to him, inasmuch as he acted under it, and thus virtually declared, that the direction was legal. The objection is too unfounded to require discussion. The facts were truly represented, by the copy left in service; and the plaintiff, who must be presumed to know the law, had knowledge, if the copy reached him, that the defendant was not invested with any authority for the performance of this act. The opinion of the defendant implied from the proceeding, that he was duly empowered to serve the writ, is of no legal effect, either in relation to himself or others ; and it would constitute a new head of estoppel, to hold, that such opinion precluded a defence against a groundless claim.
Brainard, Lanman and Daggett, Js. were of the same opinion.
Peters, J.
The objection to the evidence offered by the plaintiff seems to have originated in a mistaken construction of the statute. The act of 1804 (ed. 1808. tit. 95. sect. 2.) not only provides, That before the authority signing a writ of attachment shall direct it to an indifferent person, the plaintiff, or his agent, shall make an affidavit in certain words ; but also directs the magistrate to endorse and attest the same, in the words prescribed. Eno v. Frisbie, 5 Day 122. The revised statute, (tit. 2. sect. 2.) though it prescribes an oath in the same words, merely directs him to certify on the writ, that he administered the same ; and adds, that “ if any writ of attachment be directed to an indifferent person, except in the cases and under the regulations above-mentioned, the same shall abate.” But it does not say, in conformity with the defendant’s claim, that the same shall be void; nor does it direct, that the magistrate shall [142]*142certify, that the person making such affidavit, is the agent, which would make it necessary for such person to produce a letter of attorney, before he could be permitted to make such affidavit; It is enough, in my opinion, that he appear and act as agent, from which his agency is to be presumed. But whether the writ was void, voidable or abateable, judgment and execution upon it were awarded against the plaintiff, without notice, whereby his property was taken and sold at the post, by means of the fraud, falsehood and malice of the defendant, for which he ought to be responsible; and no hypercriticism ought to skreen him from justice. I advise a new trial.
New trial not to be granted.