In such a case, however, it does not seem to be indispensably necessary to prove an actual delivery of the writ to the officer. It is sufficient, if it be shewn that it was actually made out, and sent to the officer by mail or otherwise, or left at his house, or elsewhere, for the purpose of being executed, or that some act was done evincing a positive and unequivocal intention to have it served.1

It has been holden in Massachusetts, contrary to the English and New York decisions before referred to2 that a declaration laying the promise after the date of the writ, though bad on special demurrer, is cured by verdict.s

The Massachusetts doctrine has been adopted also in Connecticut.*

1 Burdick v. Green, 18 Johns. Rep. 14.

2 Vide ante. page. 125, 127.

3 Bemis v. Faxon, 4 Mass. Rep. 263. Yelv. 71 a. note.

Story v. Barrell et al. 2 Conn. Rep. 665.

CHAPTER X.

SERVICE OF WRITS.

The next step in the order of process, is the service of the writ upon the defendant. This is necessary, in principle, for the security of the plaintiff, and for giving notice of the suit to the defendant. The rules regarding the manner of service, however, are principally established by statute.

It may be remarked here, that all objections to the service of a writ should be made by plea in abatement or by motion; and that if no service appear to have been made, the court will ex officio stay all proceedings.'

SECT. I. BY WHOM ALL WRITS MUST BE SERVED.

All writs must be served by the officer, that is, the sheriff, or his deputy, the coroner, or a constable, to whom they are legally directed: and if legally directed to several of them, by either of those named.2

We have already seen, that a mistake in the direction of a writ may be amended, if the service were really made by an officer, who could legally make it.3 But if a writ be served by any other than the proper officer, however it may be directed, as if any of the

* Ante Chap. VIII. Sect. II. as to the direction of writs to officers.

3 Ibid.

writs required by statute to be served by the sheriff in person, be served by a deputy,'—or if a writ in which the sheriff or one of his deputies is a party, be served by any other person than a coroner, or a constable, when the amount is within his jurisdiction,2- or if a writ in which the ad damnum is more than seventy dollars, be served by a constable,-in all these cases, the proceedings will be set aside, on plea, or motion. But it seems, that if the defendant appear and answer, it is not error.s

SECT. II. TIME WHEN WRITS MUST BE SERVED.

1. Writs returnable to the Supreme Judicial Court and Court of Common Pleas.

-

Against individuals. All writs returnable to the Supreme Judicial Court, or Court of Common Pleas, and which are against individuals, must be served fourteen days at least, before the day of the sitting of the court, to which they are returnable.*

And the same rule applies to the time of service of a trustee writ upon the principal defendant, even though a different rule be applicable to that of the service upon the trustee. Thus, if the trustee summoned, be one of those corporations, upon which the service, to be legal, must be made thirty days before the return day, the service upon the principal may still be made fourteen days only before that return day.5

2

1 Vide ante. Chap. VIII. Sect. II. Wood v. Ross, 11 Mass. Rep. 271. Gage v. Graffam, 11 Mass. Rep. 181. And vide Brier v. Woodbury et al. 1 Pick. Rep. 362. Briggs et al. v. Strange, 17 Mass. Rep. 405. Mass. Rep. 181.

3

4

Gage v. Graffam, 11

* Stat. 1797. ch. 50. s. 1, 2.

Stat. 1794. ch. 65. s. 1.

Against corporations.- By Stat. 1783. ch. 39. s. 6. in suits against towns, precincts, parishes, or villages, or against the proprietors of any common and undivided lands, or other estate; and by Stat. 1785. ch. 75. s. 8. in suits against any town, or other body corporate, the writ must be served thirty days, at least, before the day of the sitting of the court, unto which it is returnable.

These two statutes embrace all corporations aggregate.' But by Stat. 1804. ch. 125. s. 6. in suits against turnpike corporations; and by Stat. 1833. ch. 124. s. 1. "whenever any process shall be com menced, which shall, by law, be required to be served upon any manufacturing corporation, bank, or in surance company," the service of the writ or process shall be legal, if made not less than fourteen days before the sitting of court, to which the same shall be returnable. So that as to the four last named cor porations, writs against them, need be served but fourteen days before the return day, while against all other ones, the service must be made thirty days, at least, before the day of the return.

A corporation can never be the principal defendant in a trustee process, as the statute giving this process confines it to personal actions, against persons "other than bodies politic or corporate.'

Where a corporation is trustee. - The Stat. 1832. ch. 164. which first allowed the trustee process to be instituted against any corporation or body politic, required, in its second section, that the service thereof should be made "thirty days before the said process

shall be returnable, as is now by law required in suits wherein such corporation or body politic shall be the principal debtor."

This extended to all corporations. But the provision of Stat. 1833. ch. 124. s. 1. "that whenever any process shall be commenced, which shall, by law, be required to be served upon any manufacturing corporation, bank, or insurance company, the service thereof shall be legal if made not less than fourteen days before the sitting of the court to which the same shall be returnable," amounts to an exception of the three sorts of corporations therein named. So that now, a trustee writ, in which a manufacturing corporation, a bank, or an insurance company, is summoned as the trustee, is required to be served upon them, but fourteen days before the sitting of the court: but if any corporation, other than one of these three, be the trustee, the writ must be served upon them, at least thirty days before the return day.

The time required for service upon the corporation, summoned as trustee, as we have seen, does not affect that of the service upon the principal defendant, named in the writ. This latter is in no case required to be made but fourteen days before the return day.

2. Writs returnable before a justice of the peace, or a justices' court.

Against individuals. All writs returnable before a justice of the peace, and which are against individuals, must be served, at least, seven days before the day therein set for trial.1

Against corporations. Writs against corporations returnable before a justice of the peace, it would seem,

1 Stat. 1783. ch. 42. s. 1.