Livermore v. Boswell

4 Mass. 437

Opinion

Parsons, C. J.

If the first objection had been taken upon demurrer, it might have prevailed; but it is cured by a verdict; for the jury could not have convicted the defendant, unless a regular execution, in due form, and issued by a court having jurisdiction, and not then returnable, had been given to them in evidence. The declaration states the parties to, and the date, of the execution, so that a judgment in this action may be pleaded in bar to another action for the same extortion, averring the identity of the judgment and execution.

The second objection is, that there is no allegation of the sum levied and collected by force of the execution. It is alleged that, for levying and collecting fifteen dollars, the defendant received four dollars; and that the fees received were greater than are allowed by law for poundage and travel; which is certain enough. For it is not necessary to set forth the whole transaction in this case, as in usury, where the illegal contract must be precisely set forth and proved.

The third objection goes to the service of the original writ in this action. But this is matter in abatement, which is waived by the defendant’s appearing, and pleading the general issue.

Let judgment he entered according to the verdict.