Home JAMES HART, Plaintiff in Error vs. JOSEPH HUCKINS

6 Mass. 399

May, 1810

A constable is not authorized to serve an original writ in a real action.

THE judgment, which this writ of error was brought to reverse, was rendered by the Court of Common Pleas for this county, upon a writ of entry sur disseisin in which Huckins, described as a deputy sheriff, demanded against Hart, who is named of Parsonsfield, possession of a parcel of land in said Parsonsfield. The original writ was directed to a coroner of the county, or to any constable of Parsonsfield. Richard Lord, a constable of Parsonsfield, returned that he had attached property of the tenant, and

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left a summons at his usual place of abode. At the return term, the tenant was defaulted, and judgment was entered against him. Among the errors assigned, one is, that the writ was not served by any person or officer authorized by law to serve it. The defendant in error was defaulted.

By the Court. The authority which constables have to execute writs is derived from the statute of 1795, c. 41. By the third section of this statute, it is enacted that a constable may serve upon any person, in the town to which the constable may belong, any writ, summons, or execution, in any personal action, where the damages sued for or recovered shall not exceed 70 dollars.

This was not a personal, but a real action: the service by the constable was therefore void; the tenant had no legal notice of the suit, and was guilty of no laches in neglecting to appear and answer to the writ. He ought not to have been called, and the judgment rendered on his supposed default was erroneous, and must be reversed.

Judgment reversed.

Holmes for the plaintiff in error.

See 5 Mass. 260 , Hart, petitioner for a review, vs. Huckins.