President of the Maine Bank v. Hervey
Supreme Judicial Court of Maine
Exceptions from the Western District Court, Whitman J. presiding. When this action was called for trial, at June Term, 1841, on the 11th day of the term, the said Hervey, by his attorney, moved that the plaintiffs’ writ abate for want of legal service upon the defendant; he also had filed a plea in abatement setting forth the causes of abatement as hereinafter stated, on the 8th day of the term, being the first day he had seen the writ, but not until after the new entries…
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Exceptions from the Western District Court, Whitman J. presiding. When this action was called for trial, at June Term, 1841, on the 11th day of the term, the said Hervey, by his attorney, moved that the plaintiffs’ writ abate for want of legal service upon the defendant; he also had filed a plea in abatement setting forth the causes of abatement as hereinafter stated, on the 8th day of the term, being the first day he had seen the writ, but not until after the new entries had been called. The motion and plea stated, and an inspection of the writ showed, that the writ was originally dated…
1Opinion of the Court
The opinion of the Court was afterwards drawn up by
Shepukv J.
— Although the amendment of the writ after service, and without leave of the Court, was illegal, yet having been afterwards assented to by the defendant, it can no longer afford any legal objection to the further prosecution of the suit. The affidavit required to authorize an arrest was insufficient; the arrest was illegal; and the plaintiffs can derive no advantage from it. Whiting v. Trafton, 4 Shepl. 398. The service having been illegal the writ may be regarded as presented in Court and the entry of the action as made without…
2Cases cited2 opinions
- Knox v. SummersSupreme Court of the United States · 1806
- Blake v. JonesMassachusetts Supreme Judicial Court · 1810
3Cited by2 opinions
- Boardman v. ScottSupreme Court of Georgia · 1897
- Howard v. City of SacoSupreme Judicial Court of Maine · 1959