
    John Peck, in Error, versus Isaac Warren.
    The defendant in an action in the Common Pleas was described in the original wvi* as “ late of Boston, &c. now of Lexington in Kentucky,” and the writ was served by attaching his real estate and leaving a summons with his agent. Held, that this service was insufficient ; such a service being lawful only wheie the defendant was at no time an inhabitant of the Commonwealth.
    This was a writ of error to reverse a judgment of the Court of Common Pleas, rendered at the September term 1826, in Middlesex, against the plaintiff in error. The original suit was an action of assumpsit on a promissory note, brought by War ren, the defendant, against Peck, the plaintiff in error, as promisor. In the original writ, Peck is described as “late of Boston, &c. now of Lexington in the State of Kentucky.” By the return of the sheriff, it appeared that he served the writ by attaching certain real estate belonging to Peck and by leaving a summons with his agent in this State.
    The errors assigned are ; 1. That there was no service of the writ: 2. That there was no sufficient service of the writ, and no appearance by Peck, in the original action.
    
      March 24th.
    
    
      B. Toumsend, for the plaintiff in error.
    
      Shaw and Bartlett, for the defendant,
    cited St. 1794, c. 65; St. 1797, c. 50; Touro v. Coates, 10 Mass. R. 25; Anc. Chart. 49; Tappan v. Bruen, 5 Mass. R. 193; Call v. Bagger, 8 Mass. R. 423; Gardner v. Barker, 12 Mass. R. 36.
    
      April 2d.
    
   Parker C. J.

We think it very clear, that there was no legal service of the original writ upon the defendant in the original suit, and therefore that the judgment was erroneous. The St. 1797, c. 50, § 1, provides the mode of service of writs, when goods or estate are attached ; and it requires that a summons shall be delivered to the party, or left at his last and usual place of abode ; and in case the defendant was at no time an inhabitant or resident in this Commonwealth, then such summons is to be left with his tenant, agent or attorney. The service in this case was in the latter mode ; but it appears by the writ itself, that the defendant had been at some former time an inhabitant or resident within the Commonwealth, so that this mode of service was not lawful. It is no answer to say, that this service was more likely to give notice than the other, on account of the long absence of the defendant from the Commonwealth. The legislature is to judge of this, and it having prescribed the kind of service, none other will avail.

Judgment reversed. 
      
       See Revised Stat. c. 90, § 45 ; Arnold v. Tourtellotj 13 Pick. 172.
     