
    BENJAMIN PENNY v. ABIJAH HARRISON, Jr.
    A summons served by the constable, by reading it to the agent of the defendant, and leaving at his store a copy, is notlegally served. An affidavit of merits on the part of a plaintiff in certiorari is not required.
    This was a certiorari, removing a judgment rendered by William Williams, esquire, one of the justices of the peace, in and for the county of Essex. The constable returned, that he “ served this summons by reading it to George Brown, agent of the defendant, and leaving at his store a copy.”
    
      E. B. D. Ogden for plaintiff in certiorari,
    moved to reverse the judgment, upon the ground, that the summons was not legally served; and cited Rev. Laws, 630, sections 6 and 7, and 2 Penn. Rep. 527.
    
      A. S. Pennington, for defendant,
    that the service was sufficient. It was left at the usual place of business of the defendant, and it does not appear, but that it was his usual place of abode. He contended further, that the plaintiff in certiorari ought to have made an affidavit of merits.
   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.

Ford J.

I. concur with the Chief Justice. The summons must be served as the act directs. If we should sustain the service in this case, we should be called upon to sustain a service made at a barn, work shop or any other place, when the act requires the service to be at the house or place of abode of the defendant.

Judgment reversed.

Cited in Polhemus v. Perkins, 3 Gr. 436.  