Miller v. Gages

17 F. Cas. 317, 4 McLean 436

• Court: U.S. Circuit Court for the District of Ohio
• Decided: July 15, 1848
• Status: Published

Opinion

OPINION OF THE COURT. The defendant in this case craved oyer of the writ, set it forth, and demurred to the declaration. Several causes of demurrer are assigned, but the variance assigned between the indorsement on the writ and the declaration, being the only one relied on, will be noticed. The statute adopted in our practice, requires the clerk to indorse the cause of action on the writ, without prescribing any form. An indorsement, therefore, which shall state the cause of action in general terms, will be a compliance with the law. As this is a requisite of the statute, it may constitute a ground of objection to the writ, where the indorsement is not made. The most appropriate manner of taking advantage of a neglect to make the in-dorsement would seem to be by a .motion to quash the writ. On such a motion the court would, of course, permit an amendment of the writ to be made. A defective indorsement might be pleaded in abatement, by craving oyer of the writ; but it is no ground for a plea in bar. The demurrer is overruled, and leave given to amend the writ.