Johnson v. Richards

11 Me. 49 | Me. | 1833

Parris J.

An officer cannot lawfully execute a writ of re-

plevin without taking a bond according to the statute, and the Court do say in Cady v. Eggleston, 11 Mass. 285, that the “ defendant may by plea in abatement or motion avoid the process.” But pleas in abatement, unless for matter arising since the last continuance, are generally to be pleaded at the return term of the process, and uniformly so when the matter alleged is irregularity of service. By pleading in chief the defendant waives all objections to the irregularity of the process and service, and so the court decided in Chandler v. Smith, 14 Mass. 315, which was an action of replevin carried up by appeal. — In the appellate court, a motion was made, by the defendant, to dismiss tbo suit, on the ground that the bond given by the plaintiff was not sufficient, within .the provisions of the statute. The Court say, “the defendant, having answered fully to the suit, thereby admitting a proper service of the writ, which comprises the taking a legal and valid bond with sufficient sureties, cannot now avail himself of his objection, but must be considered as having waived his exception.”

The officer is required to return the bond with the writ. It becomes a part of the record, and the defendant has the opportunity of inspecting it at the return term, and if it be defective there has been no sufficient service of which the defendant may take advantage by plea in abatement or motion.

But if he answer in chief he thereby waives all defects to writ and service, which includes the bond.

According to the agreement of the parties a default must be entered.