the suit is commenced by summons, or summons and attachment, the bill itself must be inserted. SECT. II. DIRECTION OF WRITS TO THE OFFICER. All writs and processes should be directed to the officer by whom they may legally be served. The officers authorized to serve writs in our practice are, sheriff's and their deputies, coroners and constables. By Stat. 1783. To sheriffs and their deputies. ch. 44. sheriffs and their deputies are empowered to serve all processes and writs, in their proper counties, to them directed and committed, and which are issued by good and lawful authority. And all the writs and processes which have been enumerated as used in our practice, may be directed to the sheriff or his deputy, unless either be a party, and be served by either indifferently, except the four following, viz. writs de homine replegiando,' -processes against forcible entry and detainer, issued by two justices,2-processes issued in like manner on complaints for nuisances,3-and processes from the Court of Common Pleas, to recover damages for flowing lands,-which four must be served by the sheriff personally, where he is not a party, and never can be by any of his deputies. In cases where sheriffs or their deputies may serve the writ at all, any writ may be directed to the sheriffs or their deputies of any number or all the counties in 1 Stat. 1786. ch. 58. Wood v. Ross, 11 Mass. Rep. 271. 2 Stat. 1784. ch. 8. 3 Stat. 1801. ch. 16. s. 2. * Stat. 1795. ch. 74. s. 2. the commonwealth, each county being distinctly named, and service of the writ may then be made in all or any of the counties named. And there seems to be no reason why, if after service of the writ has been made in any one or more counties originally named in the direction to the officer, the plaintiff should require to have the same served in any one or more other counties, he may not add directions to the sheriffs, &c. of such other counties and cause the writ to be served there; and this at any time before service has been completed by leaving the summons. To coroners. By Stat. 1783. ch. 43. coroners, within the counties for which they are respectively appointed, are empowered to serve all writs and processes where the sheriff or either of his deputies is a party to the suit and so also, by Stat. 1792. ch. 17. when the office of sheriff is vacant. And in such cases the writ must be specially directed to the coroner, and the direction to the sheriff or his deputy stricken out. Questions of great importance have formerly arisen, as to the cases in which the sheriff or his deputy was so far a party, as to require a direction of the writ to a coroner, a mistake in such a case being fatal, because a coroner cannot serve a writ, if the sheriff or his deputy may.' Where a town, precinct, or parish was a party, it has always been holden, that a sheriff, who was an inhabitant, was incompetent to serve the writ. But 1 Gage v. Graffam, 11 Mass. Rep. 181. Merchants' Bank v. Cook, 4 Pick. Rep. 405. 2 First Parish of Sutton v. Gloucester, 14 Mass. Rep. 216. Cole, 8 Mass. Rep. 96. Brewer v. New by Stat. 1817. ch. 13. it is provided, that sheriffs, deputy-sheriffs, coroners and constables may make service and return of all writs and processes to them duly directed, where the town or district of which they are the inhabitants, are parties or interested. Parishes are not provided for. In the case of other corporations, as banks, turnpike companies, and the like, great difference of opinion. prevailed throughout the state, until the decision of the case of the Merchants' Bank v. Cook just cited, in which it was settled, that a sheriff, who was a stockholder in a bank, which commenced a suit, was not a party within the meaning of the statute, and that the service of the writ by him was good.' It seems also to be settled by the reasoning of the court and the principle of that decision, that the sheriff must be a party on the record, to prevent him from serving the writ, and that his being in any way interested, or being, in fact, the sole party in interest, would make no difference. A coroner, who is likewise a deputy sheriff, may serve a writ, where the sheriff or his deputy is a party, but it must be directed to him in his capacity of coroner.2 To Constables. By Stat. 1795. ch. 41. s. 3. constables in any town or district, are impowered to serve any writ, summons, or execution, in personal actions, 1 Vide also Adams v. Wiscasset Bank, 1 Greenleaf Rep. 361. Osborn v. United States Bank, 9 Wheaton Rep. 738. United States Bank v. Planters' Bank, Ib. 904. 2 Colby v. Dillingham et al. 7 Mass. Rep. 475. where the damages sued for, or recovered, do not exceed the sum of seventy dollars. They have no authority, beyond this statute, as to the service of writs. They cannot, therefore, serve a writ in a real action,1 nor a libel for a divorce.2 Constables may serve writs, where the sheriff or his deputy is a party, if the ad damnum does not exceed seventy dollars.3 The jurisdiction of constables, is confined to their own towns, as that of sheriffs, deputy sheriffs, and coroners is, to their own counties. But a constable may attach property in his own town, though the defendant be not an inhabitant or resident there. And any writ which a constable can serve at all, may be directed to, and served by, a constable in any number or all the towns of the Commonwealth, if it be a court writ, or of the county in which it issues, if it be a justice writ. 5 Care should be taken, in every writ, specially to insert a direction to the officer, by whom it is intended that it shall be served; for it is said by our court, in the case of Wood v. Ross, that "it may be considered necessary, that there should be a particular direction to the officer, even in cases where his authority to serve, is expressly recognized by statute."" A defect in this particular, might be taken advantage of, by plea in abatement, or by motion to dismiss the action, 1 Hart v. Huckins, 5 Mass. Rep. 260. Same v. Same, 6 Mass. Rep. 399. 2 Brown v. Brown, 15 Mass. Rep. 389. * Vide Brier v. Woodbury et al. 1 Pick. Rep. 362. if made before appearance entered, for an appearance would be a waiver of the objection." An amendment, however, has been allowed, where the service has actually been made by the proper officer. Thus in the case of Hearsey v. Bradbury,2 a motion was made by the defendant to the court, to dismiss the writ ex officio, for want of legal service, the writ having been served by a constable, although not directed to him. The ad damnum of the writ was under seventy dollars and a majority of the court held, that as the constable had authority to serve the writ, had it been directed to him, and as the defendant had appeared, it was matter of form, which the court were authorized to allow to be amended, upon motion to insert the proper direction. The common blank form of writ issued from the clerk's office always contains a direction "to the sheriff or his deputy," and if the writ to be made, can be served by them, nothing is necessary but to insert the name of the county, or counties, in which service is to be made. If the writ is within a constable's jurisdiction, and it is intended that it shall be served by that officer, the words or to any constable of the town or towns of," &c. should also be inserted without striking out the preceding ones. But if the writ cannot be served by the sheriff or his deputy, the printed words should be stricken out and a direction to "the coroner of the county or counties of," &c. inserted, or if within a constable's jurisdiction, and intended to be served by 1 Vide Campbell v. Stiles, 9 Mass. Rep. 217. Gage v. Graffam, 11 Mass. Rep. 181. Pollard et al. v. Dwight et al. 4 Cranch. Rep. 421. 29 Mass. Rep. 95. |