Penny v. Harrison

14 N.J.L. 24

• Court: Supreme Court of New Jersey
• Decided: May 15, 1833
• Status: Published

Opinions

Hornblower C. J.

This was a judgment in the absence of the defendant, and the act of the legislature must be strictly pursued. The justice “ has no authority to proceed in the absence of the defendant, unless it appear by the return of the the constable, that the summons was “ duly served,” and the 6th section of the act constituting courts for the trial of small causes, Rev. Laws, 630, provides that the summons shall be served, &e. “by reading the same to the defendant, and delivering to him a copy thereof when required, if he shall be found, and if not found, by leaving a copy thereof at his house, or place of abode, in presence of some free person of his family of the age of fourteen years, who shall be informed of the contents thereof.”

It is plain from the return of the constable in this case, that the summons was not served, as the act requires ; it was served on the agent of the defendant, and by leaving a copy at the store of the defendant. He might as well have left it at his barn or saw mill. As to the objection, that the plaintiff in certiorari ought to have made an affidavit of merits, I think such affidavit is not required. If the defendant is sued, he must be sued according to law, and the plaintiff must take care that he is right in court.