Chandler v. Smith

14 Mass. 313

Opinion

Per Curiam.

By the return of the officer upon the writ, it appears that he took a bond from the plaintiffs at the time he replevied the property. The date of the bond is immaterial, if the fact in the return is true; because the bond may have been dated on a different day from the date of the return hy mistake merely. If the truth of the fact can be questioned at all, it can only be on an issue/to the country, upon a plea in abatement. The defendant, having answered fully to the suit, thereby admitting a proper service of the writ, cannot now avail himself of the variance in the date between the service and the bond, upon motion, but must be considered to have waived this exception.

The other grounds of the motion we think wholly untenable, as the spirit and intent of the statute, in requiring security, have been fully attained.

Motion overruled.