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eBook details

• Title: Knox and Crawford v. Summers and Thomas
• Author : United States Supreme Court
• Release Date : January 01, 1806
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

Swann, for the plaintiffs in error. The provision of the act of congress was not intended for the benefit of the marshal, or his deputy, but of the other party. The word 'shall,' in this, as in many other cases, means may. It shall be directed to a disinterested person, if the other party shall request it. But if the direction of the writ to the marshal was an informality, it is cured by the general appearance of the deputy marshal. Co. Lit. 325. 2 Ld. Ray. 1544, Blenkinson v. Iles. The record states, that there was judgment by default, at the rules against both defendants, and that at the next court, on the motion of the defendants, by Walter Jones, jun. their attorney, it was ordered that the suit be returned to the rules for proceedings anew. At the next rules, the record states, that 'the said Lewis Summers, in his proper person, comes and defends the force and injury, &c. and prays oyer of the writ,' &c. So that this plea, in abatement, was not put in until after he had appeared by his attorney, and set aside the office judgment. But this is not a matter pleadable in abatement. If a person is improperly arrested, his remedy formerly was by a writ of privilege, but now it is by motion to be discharged. He cannot plead it.

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