Smith v. Dexter

121 Mass. 597, 1877 Mass. LEXIS 61

Opinion

Gray, C. J.

Thq objections to the authority of the officer who served the writ, and to the form of the replevin bond taken in the course of the service, could not properly be made by demurrer, but only by answer in abatement or motion to dismiss, upon either of which the decision of the court below would be final. Docmanny v. Davenant, 6 Mod. 198; S. C. 1 Salk. 220. Bullythorpe v. Turner, Willes, 475, 479. Cooke v. Gibbs, 3 Mass. 193, 196. Browning v. Bancroft, 5 Met. 88. Houghton v. Ware, 113 Mass. 49. Gen. Sts. c. 114, § 10; c. 115, § 7. The irregular form of presenting these questions to that court, appearing to have been by assent of the parties, affords no ground of exception, and cannot give this court jurisdiction to decide issues which could not be regularly brought before it.

Exceptions overruled.