Carpenter v. Aldrich

44 Mass. 58

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1841
• Status: Published

Opinion

Shaw, C. J.

It is true, as stated in the argument for the defendants, that the provision of Rev. Sts. c. 90, § 10, is ex plicit and mandatory, that “ all original writs, in which the plaintiff is not an inhabitant of the State, shall, before the entry thereof, be indorsed.” But it is perfectly manifest, that it is a provision made for the benefit of the defendant, and therefore he may waive it'; and upon very strong grounds of justice and ex pediency, it has been adjudged, that if he does not take advantage of it in season, he does waive it. Whiting v. Hollister, 2 Mass. 102. Gilbert v. Nantucket Bank, 5 Mass. 98. Clapp v. Balch, 3 Greenl. 216. And even where the constitution of the Commonwealth, the fundamental and irrepealable law of the people, is equally explicit and mandatory, that all writs “ shall bear test of the first justice,” it is nevertheless held that the party, who might avail himself of a violation of this injunction, waives his right of doing so, by pleading to the merits. Ripley v. Warren, 2 Pick. 592.

The case of Haywood v. Main, 18 Pick. 226, cited in the argument for the defendants, is not opposed to this decision, because there is nothing in that case to show that the motion to dismiss was not seasonably made ; and we must presume that it was made at the first term.

Exceptions overruled.