Ayrault v. Houghtailing — 1 Hill & Den. 635

Majority

p. 635

Ayrault vs. Houghtailing and others.

Headnote

¡?roof of service of papers on an agent or a clerk of court, is prima facie sufficient, without expressly showing the special circumstances required by rule 8th as constituting a proper case for such service.

A. Taker, for the defendants,

moved to set aside the default and subsequent proceedings for irregularity, on the ground that the default was entered after the service of a plea. He read án affidavit of the defendant’s attorney stating the service of a plea in due season upon the clerk of this court, as agent for the plaintiZf’s attorney, but there was no proof that the attorneys for the respective parties resided either in different counties, or more than forty miles from each other in the same bounty.

N. Hill, jr. contra; objected that a cáse for service on an agent must be shown, before the service could be held good.

1 should think that to be necessary. As a general rulé, service must be made on the attor

p. 636

ney, but an exception is made by rule 8th, where the attorneys for the respective parties reside in different counties, or more than forty miles from each other in the same county. The practice is general, that where you show a special service out of the ordinary and primary way, because it is justified by any particular circumstance making an exception, such circum-' stance must be shown. Service on an attorney’s clerk, or in his office, or on some one of his family, are familiar instances. " So the service of process in all the courts is primarily personal, but often there are secondary modes. When these are resorted to, the circumstances justifying them must always be stated.

It is said, however, quod communis error facit jus; and that the practice has always been different in proving secondary service upon an agent. ■ I will inquire of the other judges how that may be. I find no precedent nor rule of practice in any book one way or the other.

At a subsequent day, Cowen, J. said: I have inquired of the judges, and none of us remember an instance where, in proving the service of papers on an agent or a clerk of court, it has been thought necessary to show the reason. Simple proof of service by affidavit, or by admission of the person served, has always been held prima facie sufficient. The motion must therefore be granted, with costs.

Rule accordingly.