Central Bank v. Wright — 12 Wend. 190

Majority

p. 190

Central Bank vs. Wright & Kilbourn

Headnote

A certificate by a sheriff that he served a copy of declaration on the defendant will be deemed a personal service, unless the contrary is shown.

It is not necessary to make affidavit that the paper served is a copy of the declaration filed.

June 5.

The defendants moved to set aside the default entered in this case' for not pleading. The suit was commenced by the filing of a declaration, &c. and a copy was served by the sheriff, who certified, that oh the-day of-, &c. he served a copy of the declaration on J. Wright, one of the defendants. The defendants insisted that the certificate was defective, in omitting to state that the declaration was served personally ; and also insisted that there should have been an affidavit filed that the paper served was a copy of the declaration filed.

By the Court,

In cases of the commencement of suits by the'filing and service of a declaration, the declaration must be served personally; and it will be intended, where the sheriff'certifies that he has served a copy on a defendant, that it was served personally, unless the contrary is shown. It was not formerly required that, in the affidavit of service, it should be stated that the paper served was a copy of the declaration filed; nor is it necessary now.

Motion denied.