Washburn v. Hammond

25 Vt. 648

• Court: Supreme Court of Vermont
• Decided: September 15, 1853
• Status: Published

Opinion

The opinion of the court was delivered by

Rgdeield, Ch. J.

It has always been considered, that the justice form of authorizing one to serve a writ, would not confer authority to serve a County Court writ. The justice form is given for justice writs, and is made sufficient, by statute, for the purpose for which it was given. But it omits almost all the essential requisites of an authority to serve writs, required by statute. It does not state the want of a proper officer, or even that the person is indifferent.

This defect appears upon the face of the process, and may be taken advantage of by plea in abatement, or motion, as was held in the case of Bliss v. Pass. & Conn. Riv. Railroad Co., 24 Vt. 428.

In the present case, it seems to us, that the plea is sufficient in form. It alledges that the writ was served, stating the mode, and the time and place, and that the person had no authority, which appears on the writ to be true, and refers to the writ for verification. This is all the specification of facts, which it occurs to us, the case is susceptible of. .And the case does then absolutely negative all other service whatever.

Judgment affirmed,