Clapp v. Balch

• Decision Date: 01 June 1824
• Parties: CLAPP v. BALCH
• Court: Maine Supreme Court

3 Me. 216

CLAPP v. BALCH

Supreme Judicial Court of Maine, Washington

June, 1824

IN this cause the general issue was pleaded and joined, after the plaintiff's attorney had informed the counsel for the defendant that the writ was duly indorsed. But on opening the cause to the jury before Perham J. it being discovered that this information was erroneous, the defendant's counsel moved the Court that the plaintiff be nonsuited for want of an indorsement on his writ. This motion the Judge overruled and permitted the counsel for the plaintiff to indorse the writ. To which the defendant took exceptions, pursuant to the statute.

Exception overrule.

McGaw Weston, and Daveis, for the defendant, contended that the plaintiff had no right to call on the defendant to answer till he exhibited a writ duly indorsed according to the statute. Failing to do this, it was the duty of the Court to nonsuit him, on motion made at any time during the first term. This remedy was not waived by pleading over; especially where, as in this case, it was occasioned by the mistake of the plaintiff's own attorney. And the offer to indorse the writ, during the trial, cannot avail without the consent of the defendant. Ely v. Forward 7 Mass. 25.

Deane, for the plaintiff, contended that the right was waived by pleading to the action; --Livermore v. Boswell 4 Mass. 437. And he objected that the cause was improperly brought here by exceptions; the sum demanded in damages being large enough to give the right of appeal. The mistake into which the defendant's counsel were led in the Court below was one to which he was no party; and it was no subject for the interference of this Court, but only for adjustment among the counsel who participated in it.

OPINION

MELLEN, C. J.

The defendant moved the Court below to nonsuit the plaintiff because the writ was not indorsed by any person whatever; but the Court overruled the motion; and we think very properly. If a writ is not indorsed before service, it may be a good objection by way of plea in abatement, or on motion; provided such plea be filed or motion made in due season; otherwise the objection is considered as waived. By Stat. 1821, ch. 59, sec. 8 if the person who indorsed the original writ is not of sufficient ability, the Court on motion may order the plaintiff to procure a new indorser; and in failure thereof, a nonsuit shall be directed; but that is not the present case, and of course this exception cannot be sustained. The order of Court granting leave to the plaintiff's attorney to indorse the writ at the time of trial is the ground of a second exception; but as the first is overruled, this can be of no importance, because such an indorsement could by no possibility prejudice the rights of the defendant. Of course this exception must share the fate of the other. The defect in this case, arising from the want of an indorsement, as we have before intimated, should have been taken advantage of by plea in abatement or on motion; and we are disposed to consider it as a motion to abate the writ; but in this view of the subject, we are of opinion the exception cannot prevail; the motion was too late--the general issue had been joined, and the cause was partly opened to the jury. This was a waiver of all matters of abatement, and we are bound so to...