Stevens v. Ewer , 43 Mass. 74 ( 1840 )

Wilde, J.

To the allowance of this motion two objections have been made. The first is, that the motion comes too late, and should have been made at the first term. And secondly, that nothing erroneous or irregular appears on the face of the writ, to sustain the motion ; and the plaintiffs’ counsel offered to prove, if parol proof were admissible or necessary, that in fact the writ was, before it was served, duly signed and sealed by the clerk of the court, as the law requires.

In support of the first objection, the plaintiffs’ counsel rely on the case of Ripley v. Warren, 2 Pick. 592, in which it was decided, that “ all irregularities in process must be taken advantage of by motion or plea in abatement, in the first stage of the process.” Whether this decision would apply to a case where the writ had not been duly signed by the clerk, is a question which it is not necessary to consider ; because we are of opinion that nothing irregular appears on the face of the writ, to support the motion.

The writ appears to be sealed as all other writs have been, in this county. The court has not required that the authenticity of its seal should be tested by any device or inscription ; any seal, therefore, affixed by the clerk to the writ, as the seal of the court, is to be so considered. To decide otherwise would be productive of great mischief and injustice. So, as to the signature of the clerk, that appears to be genuine ; and it is immaterial whether a blank writ be signed by the clerk, or his signature be annexed thereto by his order. That the clerk’s name was annexed by his order before service is to be presumed, and cannot be contested except by plea denying the fact, which the plaintiffs might traverse, and thus it might be put in issue and tried.

JHotion to dismiss the writ overruled, and defendants defaulted