Shaw v. Usher

41 Me. 102

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1856
• Status: Published

Opinion

Cutting, J.

According to the decision in Bramhall v. Seavcy, 28 Maine, 45, the oath, as certified by the justice on the process, was clearly insufficient to have authorized the arrest of the defendant. It omitted one of the essential requirements imposed by the 2d § of R. S., c. 148, to wit, “and to take with him property or means,” exceeding the amount required for his own immediate support.

And, according to the decision in Furbish v. Roberts, 39 Maine, 104, the action should have been dismissed for want of legal service, had the motion in this, as in that case, been seasonably made.

But it was decided, in Cook v. Lothrop, 18 Maine, 260, that, although the writ run against the body of the defendant, which was not warranted by law, yet the objection should be made to appear by a plea in abatement, or, appearing on the face of the writ, by a motion made in season. It is an objection that the defendant may waive, which must be considered as done, after a general appearance and a continuance of the action to the nest succeeding term.

Exceptions overruled.

Tenney, C. J., and Hathaway, Rice and Goodenow, J. J., concurred.