Shorey v. Hussey

32 Me. 579

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1851
• Status: Published

Opinion

Shepley, C. J.,

orally.—The statute, chap. 130, sect. 3 and 10, provides that a replevin writ shall not be served, unless a bond be given, &c. But no statute requires the officer to state affirmatively in his return, that hp had taken a bond. If he serve the writ, the implication is that the bond was given. In the absence of proof, he is presumed to have acted as the law requires.

The object of the return is merely to bring the defendant into court, or make him responsible for not coming.

But, if the officer’s return was insufficient, the objection comes too late. Though the objection may be taken on motion, it must be taken as early as if by plea in abatement.

The defendant has invoked the 27th rule. But it is inapplicable. That rule relates only to classes of cases, entirely dissimilar to this.

The remaining part of the case raises the question, whether a party, having called a subscribing witness, may prove that such witness has elsewhere made statements at variance from his testimony. But that point is settled in the case, Dennett v. Dow, 17 Maine, 19. Exceptions overruled.