Clapp v. Balch
Supreme Judicial Court of Maine
In .this cause the general issue was pleaded and joined, after the plaintiff’s attorney had informed the counsel for the defendant that the writ was duly indorsed. But on opening the cause, to the jury before Perham J. it being discovered that this information ivas erroneous, the defendant’s counsel moved the Court that the plaintiff be nonsuited for want of an indorsement on his writ.
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In .this cause the general issue was pleaded and joined, after the plaintiff’s attorney had informed the counsel for the defendant that the writ was duly indorsed. But on opening the cause, to the jury before Perham J. it being discovered that this information ivas erroneous, the defendant’s counsel moved the Court that the plaintiff be nonsuited for want of an indorsement on his writ. This motion the Judge overruled, and permitted the counsel for the plaintiff to indorse the writ. To which the defendant took exceptions, pursuant to the statute. contended that the plaintiff had no right to…
1Opinion of the Court
Mellen C. J.
delivered the opinion of the Court, as follows.
The defendant moved the Court below to nonsuit the plaintiff, because the writ was not indorsed by any person whatever ; but the Court overruled the motion ; and we think very properly. If a writ is not indorsed before service, it may be a good objection by way of plea in abatement, or on motion ; provided such plea be filed or motion made in due season ; otherwise the objection is considered as waived. By Slat. 1821, ch. 59, sec. 8, if the person who indorsed the orignal writ is not of sufficient ability, the Court on motion may…
2Cases cited1 opinion
- Livermore v. BoswellMassachusetts Supreme Judicial Court · 1808
3Cited by3 opinions
- In re Allowance of Last Will of ReedSupreme Judicial Court of Maine · 1951
- Bartlett v. ChisholmSupreme Judicial Court of Maine · 1952
- Shuttleworth v. DunlopNew Jersey Court of Chancery · 1881