Tuttle against Hunt

Tuttle against Hunt. Th® Pl!“n-tiff in a justice's court own summons! either where he is himself a ■constable or specially deputed for the purpose. Admitting evidence of a" plaintiff la declaration in his own fayqr, if objected to, jq fatal on ■error, though the court below direct the jury to disregard it. On certiorari to a Justice’s Court. The action was trorex, in the Court below, by Hunt against Tuttle, for a quan$7 of wheat, which the plaintiff claimed to have levied up-0n, as a constable, under an execution. The suit was conimenced by summons, which was served hy the plaintiff himself, and returned thus: “ Personally served, August 29th, 1822.” Both the service and return were objected to as insufficient, but the objection was overruled. Issue being joined, the cause was tried by jury ; and on the trial, the Justice allowed the plaintiff’s declaration, that he had levied upon the wheat, to be given in evidence, tho’ objected to, but after the evidence was given, he directed the jury not to regard it. R. Closset, for the plaintiff in error. H. Baldwin, contra. [MAJORITY — Curia.] Curia. The service of the summons by the plaintiff himself was good. The rule adopted in Bennet v. Fuller, (4 John. Rep. 486,) is this: that where no bail is exacted the Sheriff may serve a capias in his own favor ; and any other plaintiff may, under similar circumstances, be deputed to serve his own process. The return was sufficient. (Legg v. Stillman et al. ante, 418.) But the error in admitting proof of the plaintiff’s declaration is fatal, though the Jusice directed the jury to disregard it. (Penfield v. Carpenter, 13 John. 350.) Judgment reversed.