majority">

The opinion of the court was delivered by

Babrett, J.

In this case the defendant pleads in abatement a supposed defect in the service of the writ on him. To this plea the *78plaintiff demurs. The writ and officer’s return thereon, are referred to and made a part of the plea. It is claimed for the defendant that the only mode in which legal service could be made on the defendant, was that prescribed in the 11th section of the chapter on trustee process, in the Compiled Statutes. On the other hand, it is claimed for the plaintiff, that service may not only be made in the mode prescribed in that section, but that it may also be made in the mode prescribed in the 10th section of the same chapter.

We have no doubt, that the only mode in which legal and valid service can be made on a non-resident debtor, who actually is domiciled, and is, in point of fact, out of the state at the commencement of the suit and the service of the writ, so that personal service cannot be made on him, is that prescribed by said 11th section. As to the mode of service in such case, it makes no difference whether the debtor has ever resided in the state or not.

The 11th section was enacted to provide for a class of cases which had arisen under the trustee law of the Revised Statutes, for which that law had failed to provide.

In respect to the service of a writ against such debtors, by attaching property, the law remained unaltered. The copy was to be left as ever. As to debtors absconded, and not yet domiciled out of the state, the service might still be made in the mode prescribed by the Revised Statutes, and may now be so made. It is the mode prescribed by the old law where trustee process could be used only in case of absconding or concealed debtors.

The difficulty, under the trustee law of the Revised Statutes, arose from the fact, that while that law extended the trustee process to cases of debtors resident in other states, it made no provision by which the process could by served on them, unless they should be found within the state, and personal service made.

Without doubt, personal service made within the state upon such foreign resident, would be perfectly valid. But if he should keep out of the state, the only mode by whicli valid service of trustee process against him can be made is that prescribed by said 11th section.

The 10th section stands valid and unaffected by the enactment of the 11th for all cases in which it is proper to be used. But to all cases outside of its scope, the 11th section alone is applicable. *79The propriety of using the mode prescribed by the one or the other must be determined by the fact of residence within the state, or personal service on the one hand, or actual residence without the state and lack of personal service on the other.

In the use of the one or the other mode of service in the various dubious cases lying on either side of the line dividing between residence and non-residence, the creditor must take the hazard of choice that the law imposes, or he may exercise the right, that the law permits, of using both modes. If he uses but one mode, and that the wrong one, it may be his misfortune. If he resorts to both, one or the other will accomplish his purpose. The application of this view of the law to the present case is obvious, and, if the alleged defect in the service were well pleaded, we should feel bound to declare it invalid.

The question of service, arising upon the construction of the statute, has been discussed with eminent ability and instructive learning. As its decision may be of practical use, we have thought it best thus to express the views of the court.

Eut with the plea, as depending on technical rules, we have insuperable difficulty.

We regard the court as much bound to recognize and apply the rules of law applicable to pleas in abatement, as to any other subject of judicial cognizance. They are a part of the law for the court to administer in cases as they arise.

The defendant, in using this shield, subjects himself to all the legitimate incidents and hazards of this mode of defense. In this case he can claim no favor beyond his technical right, for he is in no danger of suffering injustice. The purpose of the service in this case, is notice to the defendant of the plaintiff’s process. The service has answered that purpose, and the defendant has appeared, and is now asserting and enjoying his rights of defense under the law.

We shall not notice all the exceptions taken to the sufficiency of the plea. Some of them are decisive against it.

1. The plea avers several material and traversable facts, and yet states no time or place when or where they occurred. The writ and return, being referred to and made part of the plea, can not supply this omission ; for they are not part of the plea, in the *80character of averments of facts, but as facts themselves, and have effect only as facts or as evidence of facts. This view is entirely consistent with what was held in Ingraham v. Lealand et al., 19 Vt. 304.

2. We think what was intended as an averment, that Went-worth was not the agent or attorney of the defendant, is defective.

Without doubt, that fact is material’and traversable. If so, the averment of it should be direct and positive.

“And that the said Wentworth was not,” etc., is a clause of the sentence beginning, “ But at the time of the commencement of said process,” etc. In order to give it the effect of a direct and positive averment, we must either supply the words, “ the defendant avers,” between the words “ and that,” or else we must treat the clause as constituting a part of the preceding sentence. Instead of permitting it to remain in its present position, we must, in effect, carry it back and treat it as part of a prior and independent sentence.

The law governing pleas in abatement would hardly allow such a work of amendment.

3. Under the rule that in pleadings their construction is to be most strongly against the pleader, we regard the averment of no other service, defective. The expression, “ And was not issued or served in any other way or manner whatever,” by the strict use and legitimate force of the word “ or,” instead of “ nor,” is putting an alternative between the happening of the one or the other of two facts, instead of being a denial of both. But passing this, we think this averment, taken in connection with the context, does not sufficiently negate service of the process by some other officer.

4. As to the defect in praying judgment, both in the commencement and the conclusion of the plea, we are disposed to leave it, under the remarks of Judge Redfield, in Landon v. Roberts, 20 Vt. 286. We do not regard the case of Harvey v. Hall, 22 Vt. 211, as affecting the question, inasmuch as this point of form was not raised against the plea in that case.

The judgment of the county court is reversed. The plea is adjudged insufficient. The defendant to answer over, and cause remanded to county court.

Citation profile

Relationships

How this case has been treated — in progress