(h) A constable does not incur the penalty by serving a writ, if he has conformed in all respects to the provisions of the foregoing section relative to giving bond, saving that the approval of the municipal officers has not been indorsed thereon; that provision being something for somebody else to do, and merely directory to them.12

(i) A writ may be served by the constable of a town, upon any person within that town, though such person may be an inhabitant of another town.13

(j) The process to obtain damages for flowing land by a milldam is a personal action, and, when the damages demanded do not exceed one hundred dollars, may be served by a constable.14

(k) So a constable may make a legal service of a writ in a personal action wherein the damage claimed does not exceed a hundred dollars, although the writ be not directed to him.15

(1) A constable has authority to serve an execution, issued upon a judgment for one hundred dollars, debt or damage, and four dollars and thirty-five cents costs.16

(m) The duty and authority of constables in levying executions within their jurisdiction upon real estate, are coextensive with those of sheriffs and their deputies.17

(n) A constable may serve a writ by an attachment of property within his precinct, although the defendant does not reside and is not found therein.18

(0) A constable must be an inhabitant of the town in which he is elected; and he ceases to be a constable when he ceases to be an inhabitant thereof.19

(p) A constable must be chosen by major vote cast at the annual town-meeting. Hence, a vote that whoever should make the lowest bid for collecting the taxes should be the constable, will not authorize the person, making such bid, to perform the duties of that office.20

5. The warden or his deputy shall serve, execute, and return all processes within the exterior walls of the prison-yard, and they shall be directed to him or his deputy accordingly; and for the doings of his deputy, the warden and the deputy himself shall be answerable.21

(y) The service of a writ by the deputy warden, will be valid, although brought in the name of the warden; for neither acts as the agent of the other, but both as agents of the State.22

12 Eustis v. Kidder, 26 Me. 97.-13 Blanchard v. Day, 31 Me. 494.-14 Hall v. Decker, 48 Me. 255.-15 Morrill v. Cook, 35 Me. 207.-16 Berry v. Staples, 33 Me. 494.17 Morrill v. Cook, 31 Me. 120.-18 Briggs v. Strange, 17 Mass. 405.-19 Barre V. Greenwich, 1 Pick. 129.-20 Crowell v. Whittier, 39 Me. 530.-21 R. S. c. 140, § 16.-22 Hix v. Sumner, 50 Me. 290.

(r) The acts of an officer de facto are valid when they concern the public or the rights of third persons, and they cannot be indirectly called in question, in a suit to which such officer is not a party. It is only in a suit against him that his right can be questioned.28

(s) An officer de facto is one who executes the duties of an office under some color of right, some pretense of title, either by election or appointment.23

6. A warrant duly issued by a municipal or police court, or a trial justice for an offense committed in his county, or under the law for the maintenance of bastard children, may be directed to and executed by a constable of any town therein; and if the accused has gone into another county before or after the warrant was issued, a sheriff or his deputy, coroner, or constable having the warrant, may pursue and arrest him in any county, and carry him to the county where the act complained of was committed; and when any such officer arrests a person to commit him to the jail of his county, he may convey him by the most convenient and suitable route, though it passes through other counties.24

7. Any officer aforesaid, in the execution of the duties of his office in criminal cases, for the preservation of the peace, for apprehending or securing any person for the breach thereof, or in case of the escape or rescue of persons arrested on civil process, may require suitable aid therein; and any person, so required to aid, who neglects or refuses so to do, shall forfeit to the use of the county not less than three nor more than fifty dollars; and if he does not forthwith pay such fine, the court may punish him by imprisonment not exceeding thirty days.25

8. If any officer aforesaid, who has commenced the service or execution of a precept, by death or otherwise becomes disqualified to complete it, it may be completed with the same legal effect by any other qualified officer; or if a deputy-sheriff dies after he has served and returned a precept, the sheriff, if alive, and if not, any deputy in commission at the time of such service, may be allowed by the court to amend such return the same as the officer who made it might; but the rights of third parties shall not be affected thereby.20

23 Hooper v. Goodwin, 48 Me. 79.-24 R. S. c. 80, § 47.-25 R. S. c. 80, § 48.26 R. S. c. 80, § 49.

9. Every officer, plaintiff, or his attorney, having in his possession a writ on which an attachment has been made, shall make and deliver to the debtor or his attorney, if requested and the legal fee tendered, an attested copy thereof. And if he unreasonably refuses or neglects so to do for twenty-four hours, he shall forfeit five dollars, and five dollars additional for every subsequent twentyfour hours he so refuses or neglects; to be recovered by the debtor to his own use, in an action of debt, in any competent court.27

10. Any officer aforesaid who unreasonably neglects or refuses, on demand, to pay money received by him on execution to the person entitled to it, shall pay five times the lawful interest thereon so long as he so retains it.28

(t) In order to charge the officer under this section, it is necessary that the demand be made by a person having authority to receive the money and execute a legal and valid discharge.29

CHAPTER V.

OF THE SERVICE OF WRITS AND OTHER PROCESSES.

1. How served on residents. When goods or estate are attached on any original writ, a separate summons, in form by law prescribed, shall be delivered to the defendant, or left at his dwelling-house or place of last and usual abode, fourteen days before the sitting of the court to which it is returnable, which shall be a sufficient service.1

2. A justice writ must be served not less than seven, nor more than sixty days before the return day thereof.2

(a) The day on which a writ is served is counted as one, and the day on which it is returnable is to be excluded. Hence a writ returnable on Saturday before a trial justice, is seasonably served on the preceding Saturday.

3. Where the process is by original summons, wherein the law does not require a separate summons to be left

27 R. S. c. 80, $ 50.-28 R. S. c. 80, § 51.-20 Bulfinch v. Balch, 8 Me. 133. 1 R. S. c. 81, § 16.-2 R. S. c. 83, § 6.

with the defendant, the service shall be sufficient by reading the writ or original summons to the defendant, or by giving him in hand, or leaving at his dwelling-house or place of last and usual abode, a certified copy thereof fourteen days before it is returnable.3

A service in such case by leaving a summons is not legal.1

(b) A writ of capias or attachment against one defendant cannot be served by an attachment of property and an arrest of the body.5

(c) But on such a writ against two defendants, the body of one may be arrested and the property of the other attached."

(d) If an officer having a writ for service offer the summons to the defendant who refuses to receive it, the officer may rightfully return that he delivered the summons; or he may return the facts specially, and they will be held a sufficient delivery."

(e) When a resident of the State is temporarily absent therefrom, leaving an agent here, no valid service of a writ of summons and attachment against him can be made by leaving a summons at the dwelling-house or place of last and usual abode of the agent.8

(f) Service should be made according to the precept in the writ upon each party defendant and trustee.9

. 10

(g) A general appearance and a continuance of the action; or pleading to the merits of an action cures all defects of service, whether the defendant be a private individual 11 or a corporation.12

4. On resident corporations. In suits against a county, the summons shall be served by leaving an attested copy thereof with one of the county commissioners or their clerk; against a town, parish, religious society, or school district with the clerk, or one of the selectmen or assessors, if there is any such officer, if not, with a member of such corporation; and against any other corporation, however created, with its president, clerk, cashier, treasurer, general agent, or director; if there is no such officer or agent found within the county where such corporation is established, or where its records or papers are, by law, required to be kept, with any member thereof; and in each case it shall be so served thirty days before the return day thereof.13

3 R. S. c. 81, § 17.-4 Matthews v. Blossom, 15 Me. 400.-5 Trafton v. Gardiner, 39 Me. 501.6 Conner v. Madden, 57 Me. 410.-7 Fuller v. Kenney, 32 Me. 334.-8 Holmes v. Fox, 19 Me. 107.-9 Howe's Pr. 138.-10 Shaw v. Usher, 41 Me. 102.-11 Woodman v. Smith, 37 Me. 21.-12 Harris v. Som. & Ken. R. R. Co., 47 Me. 298.-13 R. S. c. 81, § 18.

5. On non-residents. If any one defendant is not an inhabitant of the State, the writ may be served on him by leaving a summons or copy, as the case may be, with his tenant, agent, or attorney in the State, fourteen days before the sitting of the court; and if his goods or estate are attached, and he has no such tenant, agent, or attorney, after entry, the court in the county where the process is returnable, or before entry, the court in any county may order notice to the defendant, or a justice thereof in vacation may make such order signed by him on the back of the process; and if it is complied with and proved, he shall be held to answer to the suit. A trial justice or judge of a municipal or police court may, in like cases, order like notice on any process returnable or pending before him.14

6. When an action is brought by a person not an inhabitant of this State, nor to be found therein to be served with process, he shall be held to answer to any action brought against him here by the defendant in the first action, if the demands in the two cases are of such a nature that the judgment or execution in the one can be set off against the judgment or execution in the other; and if there are several defendants, each may bring such cross action, and set off his judgment against the judgment recovered against him and his co-defendants as if against him alone; and the service of the writs in such cross actions, made on the attorney of the plaintiff in the original suit, shall be as valid as if made on the party himself in this State.14 14a

In actions

7. On non-resident insurance companies. by inhabitants of this State against insurance companies established by any other State or country, on policies of insurance, signed or countersigned by agents in this State, on property or lives, or against accidents in this State; and in such actions against express companies so established, service shall be sufficient if made on the person who signed or countersigned such policies, or on any agent or attorney of either such company, or left at his last and usual abode thirty days before the return day

14 R. S. 6. 81, § 19.14a R. S. c. 81, § 74; Marco v. Low, 55 Me. 549.

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