21 Me. 38 | Me. | 1842
The opinion of the Court was afterwards drawn up by
— 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 service. The defendant in such cases may voluntarily appear and take upon himself the defence. By a general appearance he becomes a party to the suit, is regularly in Court, and authorizes it to state that fact on record, and upon proper proof from the plaintiff, to render judgment against him, unless in accordance with its rules of practice he can make a legal defence. Such a general appearance to the action cures all defects in the summons and service. Dalton v. Thorp, Cro. Eliz. 767; Rex v. Johnson, 1 Stra. 261; Caswall v. Martin, 2 Stra. 1072; Knox v. Summers, 3 Cranch, 498. A special appearance for the purpose of taking advantage of defects, can have no such effect, and it is so stated in the case of Blake v. Jones, 7 Mass. R. 28. Nor will such general appearance deprive him of the benefit of the rules of Court; and he may within the rules still plead any matter in abatement. If it become apparent on inspection, that the Court has no jurisdiction, it will at any time stay all further proceedings.
Exceptions overruled.