
    S. Wires and W. W. Peck v. Naomi Griswold & Trustees.
    
      Trustee Process. Service of the writ upon trustee and principal defendant. Abatement.
    
    Where the writ in a trustee process, was served on the principal defendant, a resident of Addison County, by a deputy sheriff of Washington County, -who had served said writ on the trustee, a resident of Washington County, this service on the principal defendant, was held defective, under our present statute, (Comp. Stat. 257 § 10,) which provides, ‘‘ that if the goods or estate of the prin- “ cipal defendant, in his own hands and possession, are attached, the writ shall “ be served on the principal defendant in the same manner as an ordinary writ of “ attachment, otherwise it shall he served on him as a writ of summons.”
    The ease of Corey v. Gale, 13 Vt. 639, can have no application to our present statute, as that case was decided under the act of 1835, which provided that the same officer who served the writ on the trustees, should also leave a copy with the principal debtors.
    The objections taken to the plea in abatement, that it set forth matter dehors the writ, and that it should not have commenced with a prayer of judgment, overruled'on the authority of the ease of Gray v. Flowers, 24 Vt. 533.
    Trustee Process. This was an action of assumpsit, the writ was returnable to the March term, 1852, of Chittenden County court, and set up the plaintiffs residing in Burlington in said county, and the principal defendant as residing in Ferrisburgh, in the county of Addison. The officer’s return on the said writ was as follows:
    
      “ Washington County ss.
    
    Montpelier, February 2d, 1852.
    “I then served this writ on the within named Vermont Mutual 
      “ Insurance Company, as Trustee, by leaving with Charles Dew- “ ey, clerk of said company, a true and attested copy of the original writ and of my return hereon thereon endorsed. And on “ the 8th day of March, A. D. 1852,1 gave the within named Na- “ omi Griswold, in Ferrisburgh, in the county of Addison, a true “ and attested copy of the original writ, and of my return hereon “ thereon endorsed.
    (Signed,) “ Attest. Holden Putnam 2d, D. Sheriff.”
    
    The defendant filed her plea in abatement, for want of legal service of the writ on the principal defendant. The plaintiffs replied, and insisted that there was due and legal service of said writ upon her, the defendant. To the replication of the plaintiffs, the defendant demurred.
    The County Court, March Term, 1852, — Pierpoint, J., presiding, — adjudged the replication insufficient, and that the writ abate.
    Exceptions by plaintiffs.
    
      W. W. Peck for plaintiffs.
    1. The Comp. Stat. 257 § 9, 10, intends that the service on the trustee shall embrace a notice of the service to the principal debtor. This completed, the service on the trustee becomes a full service on the principal debtor. It could be completed only by the officer, who serves on the trustee, serving on the defendant a copy of the process, and of his doings under it. Thus he would have foil notice of the pendency of the suit, and of the attachment, and further service would be superfluous.
    2. The sections of the present statute, are a mere compilation, in this particular, of the previous acts upon the subject, and they provide expressly for such a service. See statutes from 1779 to 1835. Corey v. Gale, 13 Yt. 639. Parket al. v. Trustees of Williams, 14 Yt. 211. Sawyer v. Howard 8¡ Tr., 22 Yt. 540.
    3. The plea is bad. It sets up matter which is dehors the writ, for it cannot be told from anything in the record, out of the plea, that the officer was not authorized to serve process in Addison county. The plea should not therefore have commenced with a a prayer of judgment. London v. Roberts, 20 Vt. 280. 1 Chit. PI. 451. Goulds PI. Chap. 5 § 142.
    
      Phelps Sf Chittenden for defendant.
    
      1. The statute requires service to be made on the trustee in the same manner as a writ of summons, and. where no property is attached, on the principal debtor in the same manner. The officer in this case had no authority to serve a writ of summons upon the principal debtor, and his service is therefore void. Comp. Stat. 257 § 10.
    2. The service upon the trustee was complete when the copy was left with the clerk, and is not analogous to the case of attachment of personal .chattels, which is incomplete until the copy of the process is left with the defendant by the officer making the attachment. - '
    3. By the act of 1835, it was made the duty of the officer serving the process on the trustee, to leave a copy at the last place of abode of the debtor. The case of Gorey v. Gale, 13 Yt., arising under this act, is not an authority in point.
   The opinion of the court was delivered by

Isham, J.

The writ in this case was served on the principal defendant, a resident of Ferrisburgh, in the county of Addison, by a deputy sheriff of the county of "Washington. The statute directs, “ that if the goods or estate of the principal defendant in “his own hands and possession are attached, the writ shall be “ served on the principal, defendant in the same manner as an ordi- nary writ of attachment, otherwise it shall be served as a writ of summons.”

If this process had been an ordinary writ of attachment or summons, this officer could not have made the service, as his precinct did not extend out of the county of Washington. A deputy sheriff of Washington county cannot serve a process in the county of Addison. As the officer in this case had no authority to serve an ordinary writ of attachment or summons in the county of Addison, so he had no authority to serve this writ; for it is a matter of express provision that one process shall be served in the same manner, as the other.

A different mode of service was directed under the act of 1835. The form of the process under that act, was different from that now required. In the service of that process, the statute directed that the same officer, who served the writ on the trustees, should also leave a copy with the principal debtor. The writ under that statute was not required to be served as ordinary writs of attachment or summons; it was sufficient that the principal debtor had notice of the pendency of the suit against the trustees. It was under this act, that the case of Corey v. Gale, 13 Vt. 639, was decided. That case, therefore, can have no application to our present statute, where the writ in form issues against the principal debtor as an attachment or summons, and is to be served in the same manner, and where he is made the principal party on the record. The service of this writ is, in this particular, essentially defective.

The objection taken to the plea is overruled, on the authority of the case of Gray v. Flowers, 24 Vt. 533.

Judgment affirmed.  