The opinion
Mellen C. J.
afterwards delivered the opinion of the Court.
By the plea in abatement it appears that the defendant, at the time of the service of the writ, was a deputy sheriff; and that the officer who served it was also a deputy,—both under the same Sheriff. The replication states that the defendant was also a Coroner at that time. There is no doubt that the replication is bad. The defendant is not less a deputy sheriff for being also a Coroner;—and the statute is express that one deputy cannot legally serve a writ on another deputy, nor on the Sheriff;—the service must be by a Coroner, or by a Constable if within the limit of his authority.
Some doubt was entertained and expressed when the case was first examined, whether the plea was not also bad, because it does not state how the writ should have been served, and so give the plaintiff a better writ. But we are satisfied that the plea is good, though containing no such averment. It discloses facts shewing that the officer who made the service was not by law authorized so to do, and consequently that the service was illegal:—and seeing these facts, we are bound to take notice of the public statute which directs that in such cases the service should have been by a Coroner or Constable, though the plea does not aver that it should have been so served. The rule as to giving the plaintiff a better writ, as it is termed, applies only to the disclosure or averment of facts;—no man is bound to aver to the Court what the law is;—they must take judicial notice of it.
Writ abated„