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Knox & Crawford v. Summers & Thomas, 7 U.S. 496 (1806)

Knox & Crawford v. Summers & Thomas

7 U.S. 496




In this case it was decided that an appearance by attorney cured all irregularity in the process.

The plaintiffs in error brought an action of debt on a bond against the defendants in the court below, to which the defendant, Summers, after oyer of the writ, pleaded in abatement, that on the day of the issuing of the original writ, as well as on the day of its service on him, he was one of the marshal's deputies, for the District of Columbia, and that the writ was not directed to a disinterested person, appointed by the Court of the District of Columbia, or by any justice or judge thereof, to execute the same. To which plea the plaintiffs demurred specially, 1st, because the plea was filed long after the appearance of the defendant, Summers; 2d, because, after his appearance to the suit, no objection can be urged to the irregularity of the service of the process; 3d, because, if the process was irregularly issued, directed, or served, the remedy was by motion and not by plea, and 4th, because the process was duly issued, directed and served. But the court below adjudged the

Page 7 U. S. 497

plea to be good, and ordered the writ to be quashed as to both defendants. Whereupon the plaintiffs sued out their writ of error.

By the 28th section of the Act of Congress of 24 September, 1789, vol. 1, p. 66, it is enacted

"That in all causes wherein the marshal or his deputy shall be a party, the writs and precepts therein shall be directed to such disinterested person as the court, or any justice or judge thereof, may appoint, and the person so appointed is hereby authorized to execute and return the same. "

Page 7 U. S. 498

The Court was unanimously of opinion that the appearance by attorney cured all irregularity of process. The defendant, perhaps, might have appeared in propria persona, and directly pleaded in abatement. But having once appeared by attorney, he is precluded from taking advantage of the irregularity.

The judgment reversed, the defendant ordered to answer over, and the cause remanded for further proceedings.

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