Peck v. Warren

25 Mass. 164

• Court: Massachusetts Supreme Judicial Court
• Decided: April 2, 1829
• Status: Published

Opinion

Parker C. J.

We think it very clear, that there was no legal service of the original writ upon the defendant in the original suit, and therefore that the judgment was erroneous. The St. 1797, c. 50, § 1, provides the mode of service of writs, when goods or estate are attached ; and it requires that a summons shall be delivered to the party, or left at his last and usual place of abode ; and in case the defendant was at no time an inhabitant or resident in this Commonwealth, then such summons is to be left with his tenant, agent or attorney. The service in this case was in the latter mode ; but it appears by the writ itself, that the defendant had been at some former time an inhabitant or resident within the Commonwealth, so that this mode of service was not lawful. It is no answer to say, that this service was more likely to give notice than the other, on account of the long absence of the defendant from the Commonwealth. The legislature is to judge of this, and it having prescribed the kind of service, none other will avail.¹

Judgment reversed.

1 See Revised Stat. c. 90, § 45 ; Arnold v. Tourtellotj 13 Pick. 172.